UNIVERSITY 

OF  CALIFORNIA 

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REPORTS  OF  CASES 


ARGUED  AND  DETERMINED 


SUPREME  COURT 


STATE  OF  ILLINOIS. 


BY  J.  YOUNG  SCAMMON, 

COUNSELLOR  AT  LAW. 


VOL.  I. 


REPRINTED  FROM  THE  ORIGINAL  EDITION  WITH  ANNOTATIONS  BY 
EDWIN  BUERITT  SMITH    AND  ERNEST  HITCHCOCK, 
OF  THE  CHICAGO  BAR. 


CHICAGO: 

CALLAGHAN  &  COMPANY. 
1836. 


J 


A3- 
-.1 


Entered  according  to  the  Act  of  Congress,  in  the  year  J840, 

BY  J.  YOUNG  SCAMMON, 
In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  District  of  Illinois. 

Entered  according  to  Act  of  Congress,  in  the  year  1880, 

BY  CALLAGHAN  &  COMPANY, 
In  the  offi~e  of  the  Librarian  of  Congress,  at  Washington. 


Stereotyped  »r.d   Printed 

by  the 
Chicago  Legal  News  Company. 


EXPLANATORY  NOTE. 


The  present  edition  of  this  volume  contains  references  to  all 
subsequent  citations  of  each  case  by  the  Supreme  and  Appel- 
late Courts  in  the  opinions  appearing  in  the  Supreme  Court 
Reports  up  to  and  including  part  of  volume  113,  and  in  Brad- 
well's  Reports  up  to  and  including  volume  16.  These  citations 
have  been  carefully  classified  and  show  the  present  status  of 
all  cases  of  sufficient  value  to  have  been  referred  to  in  later 
decisions.  They  also  form  a  most  valuable  index  to  subsequent 
discussions  of  the  subject-matter  of  the  cases  cited. 

The  text  and  head  notes  are  reprinted  from  the  original  or 
Reporter's  edition,  with  the  addition  of  index  words  to  the 
head  notes. 

The  notes  of  the  original  and  Underwood's  editions  are  re- 
tained, and  the  authorship  indicated,  in  all  cases  where  they  are 
of  any  present  value. 

Additional  notes  are  added  to  the  more  important  cases. 
Points  of  law,  which  have  long  been  settled,  or  which  are  of 
but  slight  importance,  are  not  enlarged  upon.  While  special 
attention  has  been  given  to  the  citation  of  Illinois  authori- 
ties, the  notes  are  by  no  means  confined  to  them. 

The  references  to  the  Illinois  Statutes  are  to  the  very  fully 
annotated  edition  of  1885  by  Starr  &  Curtis,  chapter  and  sec- 
tion being  given  for  the  benefit  of  those  having  other  editions. 

CHICAGO,  January  1,  1886. 

E.  B.  S. 
E.  H. 
(iii) 


77759 r 


ADVERTISEMENT 

TO  THE  SECOND  EDITION. 


THE  first  edition  of  this  book  was  destroyed  by  fire,  in  De- 
cember, 1840,  while  in  the  hands  of  the  binder. 

"With  as  little  delay  as  possible,  its  place  has  been  supplied 
by  the  present  edition,  which  has  been  carefully  revised. 
Much  pains  have  been  taken  to  render  the  work  worthy  of  the 
Court  and  the  profession. 

This  edition,  as  was  the  first,  is  published  upon  the  sole  re- 
sponsibility  of  the  Reporter.  The  accident  which  befell  the 
former,  caused  him  a  heavy  loss  of  time  and  money.  He 
trusts  that  the  liberal  patronage  of  a  profession  everywhere 
distinguished  for  their  generosity  and  encouragement  of  laud- 
able enterprise,  will,  in  some  degree,  remunerate  him  for  his 
expenditures. 

THE  REPORTER 

CHICAGO,  September,  1841. 


PREFACE. 


IT  is  due  to  the  profession,  as  well  as  to  the  Reporter,  to 
state  the  circumstances  under  which  this  volume  of  Reports 
has  been  prepared  for  the  press  and  those  attending  its  publi- 
cation. 

The  undersigned  received  the  appointment  of  Reporter  at 
the  close  of  the  July  term,  1839  ;  consequently,  in  all  of  the 
cases  argued  before  his  appointment,  he  did  not  take  notes  of 
the  points  made  or  authorities  cited,  nor  did  he  make  any 
memoranda  of  the  names  of  counsel.  He  has  therefore  been 

(iv) 


PREFACE,  v 

obliged  to  rely  wholly  upon  the  information  afforded  him  by 
the  papers  on  tile  in  the  clerk's  office.  He  does  not  expect  that 
he  has  given  in  all,  perhaps  not  in  a  majority,  of  the  cases,  the 
points  and  authorities  of  counsel ;  for  in  very  many  cases  no 
briefs  were  to  be  found.  The  practice  of  the  Court  to  require 
an  abstract  of  the  case  from  the  counsel  for  the  appellant  or 
plaintiff  in  error,  while  none  is  required  of  the  appellee  or  de- 
fendant in  error,  has  the  effect  to  cause  a  brief  to  be  filed  by  the 
counsel  for  the  former,  while  the  counsel  for  the  latter  usually 
content  themselves  with  making  their  points  and  citing  their 
authorities  on  the  hearing. 

In  all  cases  where  briefs  could  be  found  which  contained 
matter  of  any  importance,  the  points  and  authorities  have  been 
given  in  the  report  of  the  case. 

In  many  of  the  cases,  from  the  neglect  of  counsel  to  sign 
their  names  to  their  abstracts,  and  from  the  manner  in  which 
the  docket  has  been  kept,  it  has  been  difficult  to  ascertain,  with 
precision,  who  appeared  as  counsel.  Mistakes  have  doubtless 
occurred  in  this  particular. 

It  was  the  original  intention  of  the  Reporter  to  include  in 
this  volume  all  the  cases  decided  and  not  previously  reported, 
up  to  the  end  of  December  term,  1839,  and  this  design  was 
not  abandoned  until  the  book  was  nearly  printed,  when  it  was 
ascertained  that  it  would  be  impossible  to  include  all  those  cases 
without  swelling  the  book  to  an  inconvenient  size,  and  to  one 
which  would  not  correspond  with  subsequent  volumes^  if  the 
Reports  should  be  continued.  He  therefore  was  compelled,  re- 
luctantly, to  defer  many  of  those  cases  to  a  subsequent  vol- 
ume. 

In  determining  upon  the  period  from  which  the  Reports 
should  commence,  he  has  been  governed  solely  by  the  direc- 
tion of  the  Court.  This  volume  includes  all  the  cases  decided 
since  the  publication  of  Breese's  Reports,  down  to  December 
term,  1839,  including  a  part  of  the  cases  decided  at  that  term. 

The  collection  of  printed  opinions  published  by  Mr.  Wal- 
ters was  designed,  as  the  undersigned  was  informed  by  Mr. 
Forman,  who  prepared  the  marginal  notes  to  the  same,  only 
for  temporary  use,  until  they  should  be  published  in  some  more 
permanent  form.  That  collection  is  cited  in  this  volume  some- 
times as  "  Printed  Opinions,"  and  sometimes  as  "  Forman.  " 


vi  PREFACE. 

Continued  ill  health  has  much  delayed  the  publication  of  this 
volume,  and  prevented  the  Reporter  from  bestowing  that  at- 
tention upon  the  work  which  its  importance  demanded,  and 
which  otherwise  would  have  been  given.  He  can  not  therefore 
hope  that  it  is  so  free  from  errors  as  could  be  desired.  Yet 
he  trusts  that  few,  if  any,  mistakes  will  be  found  which  the 
reader  can  not  readily  correct.  He  has  endeavored  to  report 
accurately  and  faithfully. 

The  references  made  in  the  work  are  those  usually  found  in 
law  books.  It  is  only  necessary  to  observe  that  the  Revised 
Laws  of  1833,  have  been  uniformly  cited  as  "  R.  L.,"  and  the 
edition  of  the  statutes  published  by  Mr.  Gale,  in  1839,  as 
"  Gale's  Stat" 

The  Reporter  has  spared  no  expense  in  endeavoring  to  get 
the  book  up  in  a  style  not  unworthy  of  the  Court  and  the  State. 

It  is  due  to  the  Court  to  state,  that  during  almost  the  entire 
period  included  in  these  Reports,  the  Supreme  Court  was  holden 
at  a  great  distance  from  the  residence  of  the  Judges  and  most 
of  the  members  of  the  bar,  and  at  a  place  but  illy  providecHvith 
accommodations,  and  in  whicn  a  good  law  library  was  a  desid- 
eratum not  to  be  realized.  The  Court  has,  consequently,  been 
often  obliged  to  decide  causes  without  that  full  argument  and 
consultation  of  authorities  which  are  afforded  to  the  Judicial 
Tribunals  of  other  States  and  countries. 

The  notes  and  references  of  the  Reporter,  though  not  so 
numerous  and  full  as  he  desired  to  make  them,  he  trusts  will 
yet  be  found  convenient  to  the  profession. 

The  continuance  of  these  Reports  will  depend  upon  the  pat- 
ronage of  the  profession.  The  work  is  published  upon  the 
responsibility  of  the  Reporter,  and  it  has  cost  him  a  large  sum 
of  money.  Should  they  be  continued,  he  hopes  that  the  ex- 
perience he  has  had  in  preparing  this  volume,  will  enable  him 
to  present  to  the  public  and  to  the  profession,  a  more  desir- 
able production. 

THE  REPOBTEK. 
CHICAGO,  December,  1840. 


JUDGES  OF  THE  SUPREME  COURT 


STATE  OF  ILLINOIS, 


FROM  THE  ADOPTION  OP  THE  CONSTITUTION  TO  THE  PRESENT  TIME. 


JOSEPH  PHILIPS, 
f  HOMAS  C.  BROWNE, 
WILLIAM  P.  FOSTER, 
JOHN  REYNOLDS, 
WILLIAM  WILSON, 

Do  do 

THOMAS  REYNOLDS, 

Do  do 

WILLIAM  WILSON, 
SAMUEL  D.  LOCKWOOD, 
THEOPHILUS  W.  SMITH, 
THOMAS  C.  BROWNE, 


Date  of  Common.    Date  of  Resig^n. 
CHIEF  JUSTICE,        Oct.  9,  1818,  July  4,  1822. 
ASSOCIATE  JUSTICE,  do  9,     do 
ASSOCIATE  JUSTICE,  do   9,     do        do  7,  1819. 
ASSOCIATE  JUSTICE,  do    9,     do 
ASSOCIATE  JUSTICE,  July  7,   1819, 
ASSOCIATE  JUSTICE,  Feb.  6,  1821,  (1) 
CHIEF  JUSTICE,        Aug.  31, 1822, 
CHIEF  JUSTICE,        Jan.  14,  1823,  (1) 
CHIEF  JUSTICE,         do   19,  1825, 
ASSOCIATE  JUSTICE,  do  19,    do 
ASSOCIATE  JUSTICE,  do  19,    do 
ASSOCIATE  JUSTICE,  do  19,    do 


ATTORNEYS  GENERAL  OF  THE  STATE  OF  ILLINOIS. 


FROM  THE  ADOPTION  OF  THE   CONSTITUTION  TO  THE  PRESENT  TIME. 


DANIEL  POPE  COOK, 
WILLIAM  MEARS, 
SAMUEL  D.  LOCKWOOD, 
JAMES  TURNEY, 

Do  do 

GEORGE  FORQUER, 
JAMES  SEMPLE, 
NINIAN  W.  EDWARDS, 

Do  do 

JESSE  B.  THOMAS,  JR., 
WALTER  B.  SCATES, 
USHER  F.  LINDER,. 
GEORGE  W.  OLNEY, 
WICKLIFFE  KITCHELL, 


Date  of  Commission. 
March  5,  1819, 
Dec.   14,  do 
Feb.    6,  1821, 
Jan.   14,1823, 
do     15,  1825, (1) 
do     23, 1829, 
do     30,  1833, 
Sept.     1, 1834, 
Jan.    19,  1835,  (1) 
Feb.    12,  do 
Jan.    18,  1836, 
Feb.     4,  1837, 
June  26,  1838, 
March  5,  1839. 


Date  of  Resignation. 
Oct.  15,  1819. 

Dec.  28, 1822. 
Jan.  7,  1825. 
Dec.  1828. 


Dec.    8,  1835. 

do  26,  1836. 

June  11,  1838. 

Feb.    1,  1839. 


(1)  Re-commissioned,  having  first  been  appointed  by  the  Governor. 

(vii) 


CIRCUIT  JUDGES  OF  THE  STATE  OF  ILLINOIS. 

FROM  THE  ADOPTION  OP  THE  CONSTITUTION  TO  THE  PRESENT  TIME. 


Date  of  Comm'n.    Date  of  Resig'n. 

JOHN  Y.  SAWYER,      JUDGE  1st  CIRCUIT,  Jan.  19,  1825,      Jan.  24,  1831. 
SAMUEL  McROBERTS,  do      2d      do         do    19,   do 
RICHARD  M.  YOUNG,    do      3d      do         do    19,   do 
JAMES  HALL,  do      4th     do          do    19,  do 

JAMES  0.  WATTLES,    do      5th     do          do    19,   do 

Note.  The  above  named  Circuit  Judges  were  legislated  out  of  office,  in 
1827,  and  the  Judges  of  the  Supreme  Court  required  to  perform  circuit  duty, 
as  follows:  1st  Circuit.  Justice  Lockwood;  2d  Circuit,  Justice  Smith;  3d 
Circuit,  Justice  Browne;  and  4th  Circuit,  Chief  Justice  Wilson.  See  Re- 
vised Laws  1827,  119,  §  4. 


RICHARD  M.  YOUNG,    JUDGE  5th 
STEPHEN  T.  LOGAN,       do     1st 


Date  of  Comm'n.  Date  of  Resig'n. 
CIRCUIT,  Jan.  23,  1829,  Jan.  2,  1837. 
do    do  19,  18-^5,       1837. 
do  19,  do 

do  19,  do  Feb.  10, 1835. 
do  19,  do 

do    19,    do     March,  1837, 
Feb.          do 

Dec.  26,  1836, 

Feb.    4,  1837,  Aug.  31,  1839. 

do     8,    do     Nov.  20,  1840. 
March  4,    do 

do   20.   do 

July  20,   do      Feb.  20,  1839. 
Feb.  25,1839, 

do   25,   do 

do   25,   do  1839. 

May  27,   do 
Jan.  31,  1840,  (1) 
Sept.  9.  1839, 
Dec.  20,  do    (1) 

(1)  Re-commissioned,  having  been  first  appointed  by  the  Governor. 

(viii) 


SIDNEY  BREESE, 

do 

2d 

do 

HENRY  EDDY, 

do 

3d 

do 

JUSTIN  HARLAN, 

do 

4th 

do 

THOMAS  FORD, 

do 

'6th 

do 

ALEXANDERF.  GRANT 

,  do 

3d 

do 

JEPTHAH  HARDIN, 

WALTER  B.  SCATES, 

do' 

3d 

do 

JAMES  H.  RALSTON, 

do 

5th 

do 

JOHN  PEARSON, 

do 

7th 

do 

DAN  STONE, 

do 

6th 

do 

WILLIAM  BROWN, 

do 

1st 

do 

JESSE  B.  THOMAS,  JR., 

do 

1st 

do 

WILLIAM  THOMAS, 

do 

1st 

do 

THOMAS  FORD, 

do 

9th 

do 

STEPHEN  T.  LOGAN, 

do 

8th 

do 

SAMUEL  H.  TREAT, 

do 

8th 

do 

Do               do 

do 

do 

do 

PETER  LOTT, 

do 

5th 

do 

Do        do 

do 

do 

do 

RULES. 

SUPREME  COUET  OF   THE   STATE   OF  ILLINOIS, 

DECEMBER  TEEM,  1839. 


PRESENT, 

HON.  WILLIAM  WILSON",  CHIEF  JUSTICE, 

HON.  THOMAS  C.  BROWNE,         ) 

HON.  THEOPHILUS  W.  SMITH,    V  ASSOCIATE  JUSTICES. 

HON.  SAMUEL  D.  LOCKWOOD,   ) 

Ordered,  That  the  following  Rules  be  adopted  for  the  regu- 
lation of  the  practice  of  this  Court: 

MOTIONS. 

I.  MOTIONS  may  be  made  immediately  after  the  Orders  of 
the  preceding  day  are  read,  and  the  Opinions  of  the  Court  de- 
livered; but  at  no  other  time,  unless  in  case  of  necessity,  or  in 
relation  to  a  cause,  when  called  in  course. 

II.  MOTIONS  are  to  be  made  by  the  attorneys  in  the  follow- 
ing order:  First,  by  the  Attorney  General,  next  by  the  oldest 
practitioner  at  the  bar,  and  so  on,  to  the  youngest;  but  no  at- 
torney shall  make  a  second  motion,  until  each  member  of  the 
bar  present,  shall  have  had  an  opportunity  to  make  his  motion. 

III.  All  special  motions  shall  be  entered  with  the  Clerk,  at 
least  one  day  before  the  same  shall  be  argued;  and  the  counsel 
entering  a  motion,  shall,  at  the  same  time,  file  a  statement  of 
the  reasons  on  which  the  same  is  predicated. 

IY.     When  a  motion  is  intended  to  be  based  on  mat- 
ters which  do  not  appear  by  the  records,  the  facts  must  [*xii] 
be  disclosed  and  supported  by  affidavit. 

8UPER8EDEAS. 

Y.     No  SUPERSEDEAS  will  be  granted,  unless  a  transcript  of 
the  Record  on  which  the  application  is  made,  be  complete,  and 

(ix) 


xii  KULES. 

BO  certified  by  the  Clerk  of  the  Court  below,  and  the  requisite 
bond  be  entered  into,  and  tiled  in  the  office  of  the  Clerk  of  this 
Court,  according  to  law,  with  an  assignment  of  errors  written 
on,  or  appended  to,  the  Record. 

VI.  When  a  WRIT  OF  ERROR  shall  be  made  a  Supersedeas, 
the  Clerk  shall  endorse  upon  said  writ,  the  following  words  : 
"This  Writ  of  Error  is  made  a  Supersedcas,  and  is  to  be  obeyed 
accordingly;"  and  he  shall  thereupon  file   the  Writ  of  Error 
with  the  transcript  of  the  Record,  in  his  office.  Said  transcript 
shall  be  taken  and  considered  as  a  due  return  to  said  writ;  and 
thereupon  it  shall  be  the  duty  of  the  Clerk  to  issue  a  certificate 
in  substance  as  follows,  to  wit : 

«  STATE  OF  ILLINOIS,  ss.— 

Office  of  the  Clerk  of  the 

Supreme  Court. 

I  do  hereby  certify  that  a  Writ  of  Error  has  issued  from 
this  Court,  for  the  reversal  of  a  Judgment  obtained  by 

V. 

in  the  Court  of 

at  the 

Term,  A.  D.  18         in  a  certain  action  of 

which  Writ  of  Error  is  made  a  /Supersedeas,  and  is  to  operate 
as  a  suspension  of  the  execution  of  the  Judgment;  and  as  such 
is  to  be  obeyed  by  all  concerned. 

Given  under  my  hand,  and  the  Seal  of  the  Supreme  Court, 
at  Springtield,  this  day  of  A.  D.  18 

Clerk." 

WRITS   OF   ERROR. 

VII.  WRITS   OF  ERROR  shall  be  directed  to  the  clerk  or 
keeper  of  the  Record  of  the  Court,  in  which  the  judgment  or 
decree  complained  of,  is  entered,  commanding  him  to  certify 

a  correct  transcript  of  the  Record  to  this  Court;  but 
[*xiii]  when  the  plaintiff  in  error  shall  file  in  the  office  of  the 

Clerk  of  this  Court,  a  transcript  of  the  Record  duly 
certified  to  be  full  and  complete,  before  a  Writ  of  Error  issues, 
it  shall  not  be  necessary  to  send  such  writ  to  the  Clerk  of  the 
inferior  Court,  but  such  transcript  shall  be  taken  and  considered 
as  a  due  return  to  said  writ. 

PROCESS. 

VIII.  The  PROCESS  on  Writs  of  Error,  shall  be  a  Sdre  .Facias 
to  hear  errors,  issued  on   the  application  of  the  plaintiff  in 
error  to  the  Clerk,  directed  to  the  sheriff  or  other  officer  of  the 
proper  county,  commanding  him  to  summon  the  defendant  in 


KULES.  xiii 

error  to  appear  in  Court,  and  show  cause,  if  any  he  have,  why 
the  judgment  or  decree  mentioned  in  the  Writ  of  Error,  shall 
not  be  reversed.  If  the  Sdre  Facias  be  not  returned  ex- 
ecuted, an  alias  and  pluries  may  issue,  without  an  order  of 
Court. 

IX.  The  first  days  of  each  term,  and  the  third  Mondays 
thereof,  shall  be  return  days,  for  the  return  of  process. 

X.  The  SCIEB  FACIAS  if  sued  out  in  vacation,  shall  be  made 
returnable  to  the  first  day  of  the  term,  in  case  there  be  ten 
days  between  the  issuing  of  the  writ,  and  the  said  first  day  of 
the  term,  but  if  there  be  not  ten  days  between  the  suing  out  of 
the  writ,  and  the  said  first  day  of  the  term,  then  the  Sdre  fa- 
das  shall  be  made  returnable  to  the  third  Monday  of  the  term. 

XL  "When  the  SCIRE  FACIAS  shall  be  sued  out  during  the 
term,  it  shall  be  tested  on  the  first  day  of  the  term,  and  made 
returnable  to  the  third  Monday  thereof.  In  case  ten  days  shall 
not  have  intervened  between  the  service  of  the  same,  and  the 
return  day  thereof,  the  Court  may,  on  the  application  of  the 
defendant,  extend  the  time  for  joining  in  error,  or  for  hearing, 
beyond  the  time  allowed  in  other  cases.  If  the  Court  shall 
not  continue  to  sit  until  the  third  Monday  after  the  first  Mon- 
day of  its  session,  the  service  of  the  Sdre  -Fadas  on  the  de- 
fendant, if  made  before,  or  on,  the  return  day,  shall  be  deemed 
sufficient,  and  the  cause  shall  stand  continued  to  the  next 
term. 

XII.  In  proceedings  in  original  actions  relating  to  the  Rev- 
enue, the  process  or  notice  of  a  motion,  shall  be  served  on  the 
defendant,  at  least  twenty  days  before  the  first  day  of  the 
term.     If  there  shall  not  be  twenty  days  between  the  day  of 
service  and  the  first  day  of  the  term,  the  cause  may   be  con- 
tinued on  the  application  of  the  defendant. 

XIII.  In  such  original  actions,  if  a  declaration  set- 
ting forth  the  cause  of   action,  shall  not  be  filed,  at  [*xiv] 
least  twenty  days  before  the  first  day  of  the  term,  the 
cause  may  be  continued  on  the  application  of  the  de- 
fendant. 

XIV.  When  it  shall  appear  to  the  satisfaction  of  the  Court, 
that  a  defendant  is  not  an  inhabitant  of  this  State,  or  cannot  be 
found,  there  shall  be  a  day  fixed  for  his  appearance,  and  an 
order  for  publication  made.      Said  order  shall  be  published 
once  a  week,  for  four  weeks  successively,  in  some  paper  printed 
at  the  Seat  of  Government;  the  last  publication  shall  be  at  least 
thirty  days  before  the  appearance  day.      After  publication  as 
aforesaid,  and  an  affidavit  thereof  being  filed  with  the  Clerk, 

xi 


xiv 


EULES. 


the   said  cause  shall   stand  for   hearing,  as   if  the  defendant 
had  been  regularly  summoned  by  Sdre  Facias. 

DOCKETING   SUITS. 

XV.  The  Clerk  shall  set  the  causes  for  argument,  in  the 
order  they  shall  be  presented  to  the  Court,  except  the  causes 
for  or  against  the  People,  which  shall  be  set  at  the  end  of  the 
civil  causes. 

ASSIGNMENT   OF   ERRORS. 

XVI.  When  a  WRIT  OF  ERROR,  not  operating  as  a  super- 
sedeas,  shall  issue,  the  plaintiff  in  error  shall,  within  eight  days 
after  the  filing  of  the  Record,  assign  in  writing,  and  tile  with 
the  Clerk,  the  particular  error  or  errors  of  which  he  complains; 
no  other  errors  shall  be  inquired  into  by  the  Court. 

XVII.  If  the  plaintiff  in  error  shall  fail  to  assign  errors, 
as  aforesaid,  a  rule  may  be  granted  against  him;    and  if  the 
errors  be  not  assigned  at  the  expiration  of  the  rule,  the  cause 
may,  on  motion,  be  dismissed. 

XVIII.  "When  a  SUPERSEDE  AS  is  granted  by  the  Court,  it 
shall  be  the  duty  of  the  plaintiff  in  error,  before  the  emanation 
of  the  writ,  to  file  in  the  office  of  the  Clerk  of  this  "Court,  a 
true  and  complete  transcript  of  the  Record,  and  to  assign  his 
errors,  so  that  the  defendant  may  join  in  error,  and  go  to  trial 
at  the  same  term  of  the  Court. 

XIX.  When  a  WRIT  OF  ERROR  is  made  a  Superseded*  in 
vacation,  it  shall  be  the  duty  of  the  plaintiff  to  file  in  the 

[*xv]  Clerk's  office,  on  or  before  the  third  day  of  the  next 
term  thereafter,  if  there  be  ten  days  between  the  grant- 
ing of  said  writ,  and  the  sitting  of  the  Court,  a  transcript  of 
the  Record  upon  which  said  Writ  of  Error  is  sued  out,  duly 
certified  to  be  full  and  complete,  and  an  assignment  of  errors; 
but  if  there  be  not  ten  days  between  the  making  of  the  order 
for  a  Supersedeas,  and  the  sitting  of  the  Court,  then  said  tran- 
script and  assignment  shall  be  filed  on  or  before  the  third 
Monday  of  the  term,  if  the  Court  shall  sit  so  long,  so  as  to 
enable  the  defendant  to  join  in  error,  and  have  a  trial  at  the 
first  term  of  the  Court  after  the  granting  of  the  Supersedeas. 

XX.  The  counsel  for  the  plaintiff  in  error  or  appellant,  shall 
furnish  to  each  of  the  Justices  of  this  Court,  before  the  argu- 
ment of  the  cause  shall  commence,  an  abstract  or  abridgment 
of  such  parts  of  the  pleadings  and  proceedings  as  the  counsel 
shall  deem  necessary  to  a  full  understanding  of  the  errors  re- 
lied on  for  a  reversal  of  the  judgment  or  decree  complained  of, 
together  with  a  brief  of  the  points  and  authorities  intended  to 
be  relied  on  in  the  argument  of  the  cause. 

xii 


KULES.  xv 

XXI.  It  shall  also  be  the  duty  of  the  counsel  for  the  plaint- 
iff  in  error  or  appellant,  to  file  in  the   Clerk's  office,  for  the 
use  of  the  defendant's  counsel,  a   copy  of   said   abstract  or 
abridgment  and  brief,  at  least  one  day  previous  to  the  argu- 
ment, when  the  cause  is  not  argued  on   the  first  day  of  the 
term.     If  the  rules  in  relation  to  the  furnishing  and  filing  of 
abstracts  and  briefs,  be  not  complied  with,  the  cause  shall  be 
either  continued,  or  dismissed,  at  the  discretion  of  the  Court. 

XXII.  The  defendant's  counsel  shall  be  permitted,  if  he  be 
not  satisfied  with  the  abstract  or  abridgment  by  the  plaintiff's 
counsel,  to  furnish  each  of  the  Justices  of  this  Court  with  such 
further  abstracts  as  he  shall  deem  necessary  to  a  full  under- 
standing of  the  merits  of  the  cause.     It  shall  also  be  the  duty 
of  the  defendant's  counsel,  to  furnish  each  of  the  Justices  and 
the  opposite  counsel,  at  the  commencement  of  the  argument, 
with  a  brief  of  the  authorities  he  intends  to  cite  on  the  argu- 
ment. 

XXIII.  In  all  cases,  where  errors  are  assigned,  the  assign- 
ment and  joinder  shall  be  written  on,  or  directly  appended  to, 
the  Record  in  the  cause  in  which  they  are  assigned. 

XXIV.  When  a  rule  shall  have  been  taken  to  join  in  error, 
the  appellant  or  plaintiff  in  error,  when  such  rule   shall  not 
have  been  complied  with,  may  take  a  judgment  by  default,  or 
may  set  down  the  cause  for  hearing  ex  parte,  and   the  Court 
shall  give  such  judgment  as  the  case  may  warrant. 

RE-HEARING. 

XXV.  Application  for  a  RE-HEARING  of  any  cause, 

shall  be  made  by  petition  to  the  Court,  signed  by  coun-  [*  xvi] 
sel,  briefly  stating  the  grounds  for  a  re-hearing,  and  the' 
authorities  relied  on  in  support  thereof;  notice  of  such  intended 
application  having  been  first  given  to  the  opposite  party,  or 
his  counsel. 

"When  a  RE-HEARING  is  granted,  notice  shall  be  given  to  the 
opposite  party,  of  the  time  when  such  rehearing  will  be  had. 

xiii 


RULES  AND  REGULATIONS 

IN  THE 

CIECUIT  COURT  OF  THE  UNITED  STATES 

FOR  THE  DISTRICT  OF  ILLINOIS, 

NOVEMBER  TERM,    1837. 

I.  Attorneys  and  Counsellors  at  Law  who  have  been  ad- 
mitted to  practice  in  the  Supreme  Court  of  this  State,  or  in  the 
District  Court  of  the  United  States,  shall  be  admitted  to  prac- 
tice in  this  Court,  on  motion;  and  each  person  thus  admitted, 
shall  take  an  oath  to  support  the  Constitution  of  the  United 
States,  and  that  he  will  faithfully  discharge  his  duties  as  an 
attorney  and  counsellor  of  this  Court. 

II.  The  first  Monday  of  every  month  shall  be  a  rule  day  in 
the  Clerk's  office,  on  which  rules  may  be  taken,  and  defaults 
entered.     [fte$cinded.] 

III.  Where  original  process    shall  be  served  in  any  case 
thirty  days  before  the  commencement  of  the  term,  and  decla- 
ration filed,  and  rule  for  plea  taken,  ten  days  before  the  term, 
the  plaintiff  shall  be  entitled  to  a  trial  unless  good  cause  be 
shown  for  a  continuance.     [Rescinded.'] 

IV.  Where  the  ground  on  which  a  motion  for  a  contin- 
uance is  made,  shall  not  appear  of  record,  it  shall  be   reduced 
to  writing,  and  sworn  to  by  the  party,  or  signed  professionally 
by  the  counsel. 

Y.     All  formal   objections  to  the  taking  of  depo- 
[*xvii]  sitions,  shall  be  stated  in  writing  before  the  cause  is 
called  for  trial,  and  if  not  so  stated,  shall  be  considered 
as  waived. 

Y I.  The  same  process  shall  be  used  in  this  Court,  as  is  used 
in  all  like  cases  in  the  State  Courts. 

VII.  Where  a  suit  is  brought  by  a  non-resident,  security 
for  the  costs  of  suit,  shall  be  filed  with  the  Clerk  before  the 
emanation  of  the  writ. 

(xiv) 


KULES.  xvii 

VIII.  After  the  opening  of  the  Court,  and  before  any  case 
on  the  docket  shall  be  called,  motions  shall  be  in  order. 

IX.  All   motions  to    set  aside  defaults  entered  at  rules, 
shall  be  made  on  or  before  the  second  day  of  the  term.     [Ite- 
scindedJ] 

X.  The  Clerk  shall  issue  a  venire  facias  returnable  to  each 
term,  commanding  the  Marshal  to  summon  twenty-four  per- 
sons to  serve  as  traverse  jurors,  and  twenty -four  to  serve  as 
grand  jurors. 

XI.  In  all  cases  where,  by  the  laws   of    this    State,  the 
plaintiff  would  be  entitled  to  bail  in  the  State  Courts,  he  shall 
be  entitled  to  bail  in  this  Court. 

JUNE  TEKM,  1838. 

XII.  In  all  cases  where  original   process  shall  be  served 
thirty  days  before  the  commencement  of  the  term,  and  the 
declaration  filed  on  or  before  the  first  day  of  the  term,  the 
plaintiff  may  take  a  short  rule  for  plea,  and  shall  be  entitled 
to  a  trial  at  the  same  term,  unlessv  cause  be  shown  for  a  con- 
tinuance. 

The  rules  adopted  at  the  last  term,  establishing  rule  days, 
and  to  regulate  the  filing  of  pleadings,  &c.,  are  hereby  abol- 
ished. 

By  an  order  of   the  Court  at  the  term  of  June,  1838,  the 
Marshal  is  commanded  to  summon  forty-four  jurors,  and  he  is 
not  to  make  designation  whether  petit  or  grand  jurors. 
A  copy  of  all  the  Kules  on  record. 

JAMES  F.  OWINGS, 

Clerk  of  the  Circuit  Court  of  the  United 
States  for  the  District  of  Illinois. 

xv 


TABLE  OF  CASES 

EEPORTED  t&  THIS  VOLUME. 


Aiken  v.  Deal  327 

Altum,  Easton  et  al.  v.  250 

Anglin  v.  Nott  395 

Archer  v.  Spillman  et  al.  553 

Arenz  v.  Reihle  et  al.  340 

Armstrongs.  Caldwell  546 

Arnold  v.  Johnson  et  al.  196 

Atkinson  v.  Lester  et  al.  407 


Auditor  of  Public  Accounts,  The 


People  v. 

Averett,  Waldo  et  al.  v. 
Ayres  et  al.  v.  Lusk  et  al. 


537 

487 
536 


47 
110 
321 
213 
507 
417 
595 
304 
252 
330 


Bailey  v.  Campbell 

Bailey  v.  Campbell 

Bailey  et  al.,  Grain  v. 

Bailey  et  al.,  Morton  v. 

Bailey,  Pearsons  et  al.  v. 

Baker,  Stacy  v. 

Balance  v.  Frisby  et  al. 

Baldwin  v.  The  People 

Ballard,  Gilmore  v. 

Ballingall  v.  Spraggins 

Bank  of  Cincinnati  (LaFayette) 
v.  Stone  424 

Bank  of  Illinois  (The  State)  v. 
Brown  et  al.  106 

Bank  of  Illinois,(The  State)  Camp- 
bell et  al.  v.  423 

Bank  of  Illinois,  (The  State)  Dun- 
can et  al.  v.  262 

Bank  of  Illinois  (The  State)  v. 
Hawley  580 

Bank  of  Illinois,  (The  State)  Mit- 
chell et  al.  v.  526 


Bank  of  Illinois,  (The  State)  Sloo 

v.  428 

Barber,  Dedman  v.  254 

Barbour,  Beaubien  v.  386 

Barney,  Lyon  v.  387 

Bartlett,  The  People  (use  of  Madi- 


son Co.)  v .  67 

Bates,  Lee  et  al.  v.  528 

Bates  v.  Wheeler  54 

Baxter  et  al.,  Droullard  v.  191 

Beaird  v.  Foreman  40 

Beaubien  v.  Barbour  886 

Beezley  v.  Jones  34 

Bell  v.  The  People  397 

Bennett,  Kinman  v.  326 

Bentley  v.  Brownson  240 

Berry  v.  Hamby  4^8 

Berry  v.  Wilkinson  et  al.  164 

Blair  v.  Worley  178 

Blaisdell  et  al.,  Hull  v.  332 

Bledsoe  et  al.,  Miller.p.  530 

Blevings  v.  The  People  172 

Bliss  et  al.  v.  Ferryman  484 

Bogardus,  Clifton  v.  32 

Bogardus  v.  Trial  63 

Boggess,  Peck  v.  281 

Boon  v.  Juliet  258 

Bowers  v.  Green  42 
Boyntonc*  al.,  Goodsell  et  al.  v.  555 

Braden,  McKinley  v.  64 
Brarablet  et  al.,  Jones  et  al.  v.   276 

Bratton,  Kitchell  v.  300 

Briggs,  Townsend  v.  472 
Brooks  et  al.  v.  The  Town  of 

Jacksonville  568 

Brother  et  al.  v.  Cannon  200 
(xvn) 


XVIII 


TABLE  OF  CASES. 


Brown  v.  Knower  et  al.  469 
Brown  et  al.,  Slate  Bank  of  Illi- 
nois v.  1C6 
Brown,  Yunt  t>.  264 
Brownson,  Bentley  t>.  240 
Bruner  v.  Ingraham,  556 
Bruner  i>.  Manlove  et  al.  156 
Bruner,  Manlove  et  al.  v.  390 
Buckingham  et  aL,  Linn  ».  451 
Buckniaster,  Godfrey  et  al.  v.  447 
Buckraaster  v.  Grundy  310 
Burlingame  et  al.  v.  Turner  588 
Bustard  et  al.  v.  Morrison  et  al.  2C5 
Butterfield  v.  Kinzie  445 
Butts  v.  Huntley  410 
Byrne  et  al.,  HaJl  et  al.  v.  140 

Caldwell,  Armstrong  p.  546 
Calhoun,   Illinois  and  Michigan 

Canal  v.  521 

Campbell,  Bailey  t>.  47 

Campbell,  Bailey  v.  110 
Campbell  et  al.  v.  State  Bank  of 

Illinois  423 
Campbell  et  aL,  Wilson  et  al.  v.  493 
Canal  (Illinois  and  Michigan)  v. 

Calhoun  521 

Cannon,  Brother  et  al.  v.  200 

Carson  t.  Clark  113 

Carver  v.  Crocker  265 

Caton  v.  Harmon  581 

Choisser  v.  Hargrave  317 

Christy  and  wife  v.  McBride  75 

Church  et  al.  v.  Jewett  et  al.  55 

Clark,  Carson  v.  113 

Clark,  Emerson  v.  596 

Clark  v.  Harkness  56 

Clark  et  al.,  Harmison  v.  131 

Clark  v.  Lake  229 

Clark  v.  The  People  117 

Claytor  et  al.,  Williams  v.  502 

Clements,  Moffett  v.  884 

Clemson  et  al.  v.  Hamm  176 
Clemson  et  al.  v.  State  Bank  of 

Illinois  45 

Clifton  v.  Bogardus  82 

Cochran  et  al.,  Whitney  v.  209 

Coffey,  Ogle  v.  239 

Collier  et  al.,  Humphreys  v.  47 


Collins,  Key  v. 

County  of  Vermilion  v.  Knight 
Covell  et  al.  v.  Marks 
Covell  et  al.  v.  Marks 
Grain  v.  Bailey  et  al. 
Crenshaw,  Garner  et  al.  v. 
Crisman  et  al.  v.  Matthews 
Crocker,  Carver  v. 
Crocker  v.  Goodsell  etal. 
Crocker,  Murry  ». 
Crosier,  Evans  v. 
Curtis  v.  The  People 
Cushman  et  al.,  Day  v. 
Cushman  v.  Eice  et  al. 

Dale,  King  v.  51* 

Dana,  Phillips,  v.  498 

Darling,  Latham  v.  203 

Davenport  et  al.  v.  Farrar  314 
Davenport  etal.,  Thornton  v.       296 

Davis  v.  Hoxey  406 

Day  v.  Cushman  et  aL  475 

Dazey  v.  Orr  et  al.  535 

Deal,  Aikin  v.  327 

Dediuan  v.  Barber  254 

Dedman  v.  Williams  154 

Delap,  Sands  v.  168 

Dill,  The  People  t>.  257 

Ditch  v.  Edwards  127 

Dovenor,  Swafford  v.  165 

Droullard  v.  Baxter  et  al.  191 

Duncan  v.  The  People  456 
Duncan  et  al.  v.  State  Bank  of 
Illinois  et  al. 


Easton  et  al.  v.  Altum 
Edwards,  Ditch  v- 
Edwards  et  al.  v.  Todd 
Elliot  v.  Sneed 
Emerson  v.  Clark 
Evans  v.  Crosier 


262 

250 
127 
462 
517 

596 
548 


Farrar,  Davenport  et  al.  v.  314 

Feazle  v.  Simpson  et  al.  30 
Fellows  et  al.,  Vanlandingham  v.  233 

Felt  v.  Williams  206 

Filley,  Foster  v.  256 

Finch,  Mason  v.  495 

Finch,  McKinney  t>.  152 


TABLE  OF  CASES. 


XIX 


Foreman,  Beaird  v. 

40 

Holliday  v.  Swailes 

515 

Foster  ».  Filley 

256 

Holmes  v.  Parker  et  al. 

567 

Freer,  Hubbard  'e£  al.  v. 

467 

Houcke  et  al.   Miller  v. 

501 

Frisby  et  al.  Balance  v» 

595 

Howell,  Miller  v. 

499 

Hoxey,  Davis  v. 

406 

Garen,  Roberts  ». 

396 

Hubbard  et  al.  v.  Freer 

467 

Garner  et  al.  v.  Crenshaw 

143 

Hugunin  v.  Nicholson 

575 

Garrett  v.  Phelps 

331 

Hugunin  et  al.,  Russell,  v. 

562 

Garrett  v  .  Wiggins 

335 

Hull  v.  Blaisdell  et  al. 

332 

Gately,  Morton  v. 

211 

Humphreys  v.  Collier  et  al. 

47 

Gilbert  et  al.  v.  Maggord 

471 

Hunter  v.  Ladd 

551 

Gillet  et  al.  v.  Stone  et  al. 

539 

Hunter  et  al.  v.  The  People 

453 

Gillet  et  al.  v.  Stone  et  al 

547 

Huntley,  Butts  v. 

410 

Gilliam  et  al.,  Lurton  v. 

577 

Hurley  v.  Marsh  et  al. 

329 

Gilmore  v.  Ballard 

252 

Hutson  r.  Overturf 

170 

Godfrey  et  al.  v.  Buckmaster 

447 

Hynes,  Woods  v. 

103 

Goodman,  Turney  v. 

184 

Goodsell  et  al.  v.  Boynton  et  al. 

555 

Illinois  and  Michigan  Canal 

Goodsell  et  al.  Crocker  v. 

107 

v.  Calhoun 

521 

Gordon  v.  Knapp  et  al. 

488 

Tngraham,  Bruner  v. 

556 

Greathouse,  Wilson  v. 

174 

Irvin  and  wife  v.  Wright 

135 

Green,  Bowers  v. 

42 

Israel  et  al.  v.  The  Town  of 

Greer  v.  Wheeler 

554 

Jacksonville 

290 

Grimsley  et  al.  v.  Klein 

343 

Grundy,  Buckmaster  r. 

310 

Jacksonville,  (The  Town  of) 

Guild  et  al.  v.  Johnson 

405 

Brooks  et  al.  v. 

568 

Guykowski  v.  The  People 

476 

Jacksonville,  (The  Town  of) 

Israel  et  al.  v. 

290 

Hall  et  al  v.  Byrne  et  al. 

140 

Jerome,  Wallace  v. 

524 

Hall  et  al.,  Reynolds  v. 

35 

Jewett  et  al.,  Church  et  al.  v., 

55 

Hamby,  Berry  v. 

468 

Johnson  et  al.,  Arnold  ». 

196 

Hamilton,  Pearsons  v. 

415 

Johnson,  Guild  et'^al.  v. 

405 

Hamilton  v.  Wright 

582 

Johnson  v.  Moulton 

532 

Hamm,  Clemson  et  al.  v. 

176 

Jones,  Beezley  r. 

34 

Hannum  v.  Thompson 

238 

Jones  et  al.  v.  Bramblet  et  al. 

276 

Hargrave,  Choisser  v. 

317 

Jones,  Ransom  v. 

291 

Harkness,  Clark  v. 

56 

Juliet,  Boon  v. 

258. 

Harlan,  Robinson  v. 

237 

Harmison  v.  Clark  et  al. 

131 

Kettelle  v.  Wardell 

592 

Harmison,  Caton.r. 

581 

Key  v.  Collins 

403 

Hawley,  State  Bank  of  Illinois  v 

m 

King  v.  Dale 

513 

580 

Kinman  v.  Bennett 

326 

Herrington  t>.  Hubbard 

569 

Kinzie,  Butterfield  v. 

445 

Highland  v.  The  People 

392 

Kitchell  v.  Bratton 

300 

Hight,  White*. 

204 

Klein,  Grimsley  et  al.  v. 

343 

Hileinan,  Smith  et  al.  v. 

323 

Knapp  et  al.,  Gordon  v. 

488 

Hill  et  al.,  Vickera  r  . 

307 

Knight,  County  of  Vermilion  v. 

97 

Hogan  et  al.,  Russell  et  al.  v. 

552 

Knower  et  al.,  Brown  v. 

469 

Hollenback  v.  Williams  et  al. 

544 

Kuykendall,  Slocumb  v. 

187 

TABLE  OF  CASES. 


Ladd,  Hunter  r.  551 
Lafayette  Bank  of  Cincinnati  v. 

Stone  424 

Lake,  Clark  v.  229 

Lamborn,  The  People  ».  123 

Latham  r.  Darling  203 

Lathrop,  Prevo  v.  805 

Lawrence  et  al.  v.  The  People  414 

Lteetal.v.  Bates  528 

I/ie,  Pearsons  v.  193 

Leo  et  al.,  Whitesides  v.  548 

Leidig  v.  Rawson  272 

Leigh  v.  Mason  et  al.  249 

L'ister  et  a  I . ,  Atkinson  v.  407 

Linn  t> .  Buckingham  et  al.  451 
Linn  r.  State  Bank  of  Illinois        87 

Longley  et  al.  v.  Norvall  389 

Lovett  et  al.  v.  Noble  185 

Lowery,  Vanlandingham  v.  240 

Lurton  v.  Gilliam  et  al.  577 

Lusk  et  al.,  Ayres  et  al.  v.  536 

Lyon  v.  Barney  281 

McBride,  Christy  and  wife  v.  75 

McConnell  v.  Shields  582 

McConnell  v.  Wilcox  344 

McKee,  Trader  et  al.  v.  558 

McKinley  r.  Braden  64 

McKinney  v.  Finch  152 

McKinney  v.  May  534 

McKinstry  v.  Pennoyer  et  al.  319 

Maggord,  Gilbert  et  al.  v.  471 

Manlove  et  al.,  Bruner  v.  156 

Manlove  et  al.  v.  Bruner  390 

Marks,  Covell  et  al.  v.  391 

Marks,  Covell  et  al.  v.  525 

Marks,  Menard  v.  25 

Marshal  et  al.,  Hurley  v.  329 

Marshall  v.  Maury  231 

Marston  v.  Wilcox  60 

Marston  v.  Wilcox  270 

Mason  v.  Finch  495 

Mason  etal.,  Leigh  v.  249 

Matthews,  Crisman  et  al.  v.  148 

Maury,  Marshall  v.  231 

Maxcy  v.  Padfield  590 

May,  McKinney  v.  534 

Meeker,  Tindall  v.  137 

M«>nard  r.  Marks  25 

Miller  t.  Bledsoe  et  al.  530 


Miller  v.  Houcke  et  al.  501 

Miller  v.  Howell  499 

Miller  et  al.,  The  People  v.  83 
Mitchell  et  al.  v.  State  Bank  of 

Illinois  526 

Mitcheltree  v.  Sparks  122 

Mitcheltree  v.  Sparks  ,198 

Mobley,  The  People  r.  215 

Moffett  v.  Clements  384 
Morrison  et  al.,  Bustard^  al.  v.  235 

Morton  v.  Bailey  et  al.  213 

Morton  v.  Gately  211 

Moulton,  Johnson  v.  532 

Mulford  v.  Shepard  583 

Murry  v.  Crocker  212 

Nicholson,  Hugunin  v.  575 

Noble,  Lovell  et  al.  v.  185 

Norvall.  Longley  et  al.  v.  389 

Nott,  Anglin  v.  395 

Ogle  v.  Coffey  239 

Orange,  Pickering  v  338 

Orange,  Pickering  v  492 

Orr  et  al.,  Dazey  v.  535 

Overturf ,  Hutson  v.  170 

Padfleld,  Maxcy  v.  590 

Pnnkeyr.  The  People  80 

Pdrker  et  al..  Holmes  v.  567 

Pearce  et  al.  v.  Swan  266 

Pearson,  The  People  v.  458 

Pearson,  The  People  v.  473 

Pearsons  et  al.  v.  Bailey  507 

Pearsons  v.  Hamilton  415 

Pearsons  v.  Lee  193 

Peck  v.  Boggess  281 

Pennoyer,  McKinstry  v.  319 
People  v.  Auditor  of  Public 

Accounts  537 

People,  Baldwin  v.  304 
People  (use  of  Madison  county) 

v.  Bartlett  67 

People,  Bell  v.  397 

People,  Blevings  v.  172 

People,  Clark  v.  117 

People,  Curtis  v.  285 

People  v.  Dill  257 

People,  Duncan  v.  456 


TABLE  OF  CASES. 


XXI 


People,  Guykowski  v.  476 

People,  Highland  v.  392 

People,  Hunter,  et  al.  v.  453 

People  v.  Lamborn  123 

People,  Lawrence  et  al.  v.  414 

People  v.  Miller  et  al.  83 

People  v.  Mobley  215 

People,  Pankey  v.  80 

People  v .  Pearson  458 

People  v.  Pearson  478 

People,  Pinckard  et  al.  v.  187 

People  v.  Royal  557 

People,  Swafford  v.  289 

People  v.  Taylor  202 

People,  Wickersbam  v.  128 

People.  Willis  v.  399 

Ferryman,  Bliss  et  al.  v.  484 

Peyton  et  al.  v.  Tappan  388 

Phelps,  Garrett  v.  331 

Phillips  v.  Dana  498 

Pickering  v.  Orange  338 

Pickering  v.  Orange  492 

Piggott  v.  Ramey  et  al.  145 
Pinckard  et  al.  v.  The  People      187 

Prevo  v.  Lathrop  305 

Ramey  et  al.,  Piggott  c.  145 

Ransom  v.  Jones  291 

Rawlings,  Simpson  p.  28 

Rawson,  Leidig  v.  '272 

Reavis  v.  Reavis  242 

Reddick,  Ross  et  al.  v.  73 

Reihle  et  al.,  Sheldon  v.  519 

Reihle  et  al.,  Arenz  v.  340 

Reynolds  v.  Hall  et  al.  35 

Rice  et  al.,  Cushman  v.  565 

Roberts  v.  Garen  396 

Robinson  v .  Harlan  237 

Ross  et  al.  v.  Reddick  73 

Royal.  The  People  v.  557 
Russell  et  al.,  Hogan  et  al.  v.       552 

Russell  v.  Hugunin  et  al.  562 

Russell,  Warnock  v.  383 

Sands  v.  Delap  168 
Schooner  Constitution  v.  Wood- 
worth  511 
Scott  v.  Thomas  58 
Seward  et  al.  v.  Wilson  192 


Sheldon  v.  Reihle  et  al.  519 

Shepard,  Mulford  v.  583 

Shields,  McConnell  v.  582 

Shultz,  Smith  v.  490 

Simpson  et  al.,  Feazle  v.  30 

Simpson  v.  Rawlings  28 

Simpson  v.  Updegraff  et  al.  594 

Slocumb  v.  Kuykendall  187 

SI  oo  v.  State  Bank  of  Illinois  428 

Smith  et  al.  v.  Hileman  323 

Smith*.  Shultz  490 

Smith  et  al.,  Stringer  v.  295 

Sneed,  Elliot  v.  517 

Sparks,  Mitcheltree  v.  122 

Sparks,  Mitcheltree  v.  198 

Spillman  et  al.,  Archer  v.  553 

Spraggins,  Ballingall  v.  330 

Stacker  et  al.  v.  Watson  207 

Stacy  v.  Baker  417 
State  Bank  of  Illinois  v.  Brown 

et  al.  106 
State  Bank  of  Illinois,  Campbell, 

etnl.  v.  423 
State  Bank  of  Illinois,  Clemson 

et  al.  v.  45 
State  Bank  of  Illinois  et  al.,  Dun- 
can et  al.  v.  262 
State  Bank  of  Illinois  v.  Hawley  580 
State  Bank  of  Illinois,  Linn  v.  87 
State  Bank  of  Illinois,  Mitchell  et 

al.  v.  526 
State  Bank  of  Illinois,  Sloo  v.  428 
Stone  et  al.,  Gillet  et  al.  v.  539 
Stone  et  al.,  Gillet  etal.  v.  547 
Stone,  La  Fayette  Bank  of  Cin- 
cinnati v.  424 
Stringer  v.  Smith  et  al.  295 
Sturtevant,  Webb  v.  181 
Swafford  v.  Dovenor  165 
Swafford  v.  The  People  289 
Swailes,  Holliday  v.  515 
Swan,  Pearce  et  al.  v.  266 

Tappan,  Peyton  et  al.  v.  888 

Taylor,  The  People  v.  202 

Thomas,  Scott  v.  58 
Thompson,  Hannum  v. 

Thornton  v.  Davenport  et  al.  296 

Tindall  v.  Meeker  137 


XXII 


TABLE  OF  CASES. 


Todd,  Edwards  et  al.  v.  462 
Town  of  Jacksonville,  Brooks  et 

al.  v.  568 

Town  of  Jacksonville,  Israel  et 

al.  v.  290 

Townsend  v.  Briggs,  472 

Trader  et  al.  v.  McKee  558 

Trial,  Bogardus  v.  63 

Turner,  Burlingame  et  al.  v.  588 

Turner,  Whitney  et  al.  v.  253 

Turney  v.  Goodman  184 

Updegraff  et  al.,  Simpson  v.  594 

Vanlandinghara  v.  Fellows  et  al.  233 

Vanlandingham  v.  Lowery  240 

Vermilion,  The  County    of  v. 

Knight  97 

Vickers  v.  Hill  et  al.  307 

Waldo  et  al.  v.  Averett  487 

Wallace  v .  Jerome  524 

Wardell,  Kettelle  t>.  592 

Warnock  v.  Russell  383 

Watson,  Stacker  et  al.  v.  207 

Webb  v.  Sturtevant  181 

Wheeler,  Bates  v.  54 

Wheeler,  Greer  v.  554 


White  v.  Right  204 

White  et  al.v.  Wiseman  169 

Whitesides  v.  Lee  et  al.  548 

Whitney  v.  Cochran  et  al.  209 

Whitney  et  al.  v.  Turner  253 

Wickersham  v.  The  People  128 

Wiggins,  Garrett  t>.  835 

Wilcox,  Marston  v.  60 

Wilcox,  McConnell  v.  344 

Wilcox,  Marston  v.  270 

Wilkinson  et  al.,  Berry  v.  164 
Williams  v.  Claytor  et  al.  502 
Williams,  Dedman  ».  154 
Williams,  Felt  v.  206 
Williams  et  al.,  Hollenback  v.  544 
Willis  v.  The  People  399 
Wilson  et  al.  v.  Campbell  et  al.  493 
Wilson  v.  Greathouse  174 
Wilson,  Seward  et  al.  v.  192 
Wiseman,  White  et  al.  v.  169 
Woods  v.  Hynes  103 
Woodworth,  Schooner  Constitu- 
tion v.  511 
Worley,  Blair  v.  178 
Wright,  Hamilton  v.  582 
Wright,  Irvin  and  wife  v.  135 

Yunt  v.  Brown  <J64 


DECISIONS 


SUPREME  COURT 


STATE  OF  ILLINOIS, 


DELIVERED 

DECEMBER  TERM,  1832,  AT  VANDAL1A. 

PETER,  MENARD,  Jr.,  plaintiff  in  error,  v.  JOSEPH 
MARKS,  administrator  of  George  Love,  deceased,  de- 
fendant in  error. 

Error  to  Peoria. 

SCIRE  FACIAS  TO  FORECLOSE  MORTGAGE. — A  scire  facias  to  foreclose  a 
mortgage  may  be  issued  before  the  expiration  of  one  year  from  the  decease 
of  the  mortgagor. 

A  scire  facias  to  foreclose  a  mortgage,  is  a  proceeding  in  rent,  and  not  an 
action  in  the  ordinary  acceptation  of  that  term. 

LIEN  OF  MORTGAGEE. — A  mortgage  creditor  has  a  specific  Hen  on  the 
mortgaged  premises,  which  is  not  affected  by  the  solvency  or  insolvency  of 
the  intestate's  estate. 

PLEADING. —  The  objection  that  a  scire  facias  to  foreclose  a  mortgage  does 
not  set  out  the  mortgage  in  full,  can  not  be  taken  on  a  plea  in  abatement. 

THIS  cause  was  tried  at  the  September  term,  1832,  of  the 
Peoria  Circuit  Court.  The  material  facts  are  contained  in  the 
opinion  of  the  Court. 

L.  BIGELOW,  for  the  plaintiff  in  error,  relied  upon  the  fol- 
lowing points  and  authorities : 

1.  The  proceeding,  being  entirely  in  rem,  is  not  an  action 

CITED:  Mortgage  foreclosure  by  scire  facias:  14  Til.  216;  26  111.  164. 
See  also,  Starr  &  C.  111.  Stat.  1642,  Ch.  95,  H  18,  and  notes;  Marshall  ». 
Maury,  post  231. 

1 


25  VAN  DAM  A. 


Menard  e.  Marks. 


against  the  administrator,  within  the  meaning  of  the  statute  of 
1829  (R.  L.  643  Gale's  Stat.  711);  and  the  statute  of  1825 
(R.  L.  376 ;  Gale's  Stat.  393),  upon  which  the  proceeding  is 
founded,  stands  independent  of  the  statute  of  1829,  and  is  in 
no  wise  affected  by  it. 

2.  In  construing  a  statute,  all  its  parts  and  provisions 
[*26]     should  *be  compared,  and  a  consistent  and  a  reasonable 
exposition  given  to  each  part.    Bac.  Abr.  Statute,  I,  2 ; 
Ilolbrook  v.  Holbrook  et  al.,  1  Pick.  258. 

3.  If  divers  statutes  relate  to  the  same  subject,  they  ought 
to  be  all  taken  into  consideration,  in  construing  any  one  of  them. 
Bac.  Abr.  Statute,  I,  3 ;  1  Pick,  ubi  sup. 

4.  The  intention  of  the  legislature  ought  to  prevail  in  the 
constiuction  of  a  statute,  if  that  intention  can  be  collected  from 
the  whole  law,  or  from  other  laws  in  pari  materia,  although 
it  be  contrary  to  the  literal  import  of  the  words  employed. 

United  States  v.  Wisher ',  2  Cranch,  386,  399 ;  1  Pick,  ubi  sup.; 
Bac.  Abr.  Statute,  I.  2, 5. 

5.  If  the  literal  import  of  the  words  of  a  statute  would  lead 
to  absurd,  unjust,  or  inconvenient  consequences,  such  a  con- 
struction should  be  given  as  to  avoid  those  consequences,  if, 
from  the  whole  purview  of  the  law,  and  giving  effect  to  the 
words  used,  it  may  fairly  be  done.     United  States  v.  JFisher, 
ubi  sup.;    Bac.   Abr.  Statute,  I,  2;  Bryan  v.  Buckmaster, 
Breese  s  App.  22. 

6.  If  general  words  are  used  in  a  statute,  which  import  more 
than  seems  to  be  within  the  purview  of  the  law,  and  those  ex- 
pressions can  be  restrained  by  others  used  in  the  same  law,  or 
in  any  other  upon  the  same  subject,  they  ought  to  be  restrained. 
Ibid.;  Hid. 

7.  "When  a  mortgagee  seeks  to  obtain  satisfaction  of  his  debt 
by  a  sale  of  the  mortgaged  estate,  pursuant  to  the  provisions 
of  the  statute  of  1825,  the  administrator  of  the  mortgagor  can 
have  no  interest  whatever,  as  administrator,  in  the  subject-mat- 
ter of  the  suit;  nor  can  his  property,  or  that  of  the  intestate 
in  his  hands,  be  at  all  affected  by  any  judgment  which  the 
mortgagee  may  obtain  in  such  proceedings.     Stat.  1825,  §  18 
(GaVs  Stat.  393;  R.  L.  376);  Stat.  1829,  §  120  (R.  L.  650; 
Gale's  Stat.  716). 

8.  No  new  provision  was  enacted  by  the  statute  of  July  1, 
1829,  §  97  (R.  L.  643;  Gale's  Stat.  711),  but  the  same  law  was 
in  force  at  the  time  of  passing  the  statute  of  1825.     Stat.  Oct. 
24,  1808,  §  3. 

T.  FORD,  for  the  defendant  in  error,  cited  1  Chit.  Plead.  270, 
450. 

2 


DECEMBER  TERM,  1832.  26 

Menard  ».  Marks. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  is  a  scire  facias  issued  against  the  defendant,  as  admin- 
istrator, to  obtain  a  sale  of  mortgaged  premises,  pursuant  to  the 
statute,  Jan.  17,  1825,  entitled  "An  act  concerning  Judgments 
and  Executions"     The  mortgage  was  executed  to  the  plaintiff 
by  the  defendant's  intestate.     tlpon  the  return  of  the  scire 
facias,  the  defendant   pleaded   in  abatement  that  the  scire 
facias  was  issued  within  one  year  after  the  death  of 
the  *intestate.     To  this  plea  the  plaintiff  demurred,  and     [*27] 
the  defendant  joined  in  demurrer.     On  the  hearing 
of  the  cause  in  the  Circuit  Court,  the  demurrer  was  overruled, 
and  the  plea  sustained,  and  thereupon  judgment  was  given 
that  the  scire  facias  be  abated  and  quashed.     To  reverse  this 
judgment,  a  writ  of  error  has  been  brought  to  this  Court. 

The  only  question  presented  by  the  pleadings  is,  whether 
the  97th  section  of  the  act  passed  23d  January,  1829,  (Gale's 
Stat.  711;  R.  L.  643),  "relative  to  Wills  and  Testaments,  Ex- 
ecutors and  Administrators,  and  the  settlement  of  Estates" 
forbids  the  suing  out  of  a  scire  facias  to  foreclose  a  mort- 
gage, until  after  the  expiration  of  one  year  from  the  taking 
out  of  letters  of  administration.  By  the  18th  section  of  the 
act  " concerning  Judgments  and  Executions"  passed  17th 
January,  1825,  it  is  provided  in  substance,  that  if  default  be 
made  in  the  payment  of  any  sum  of  money,  secured  by  mort- 
gage on  lands  and  tenements  dulyexecuted  and  recorded,  it 
shall  be  lawful  for  the  mortgagee  to  sue  out  a  writ  of  scire 
facias  from  the  clerk's  office  of  the  Circuit  Court  of  the 
county  in  which  said  mortgaged  premises  may  be  situated,  di- 
rected, etc.,  requiring  the  sheriff  to  make  known  to  the  mort- 
gagor, or,  if  he  be  dead,  to  his  heirs,  executors  or  administra- 
tors,, to  show  cause,  if  any  they  have,  why  judgment  should 
not  be  rendered  for  such  sum  of  money  as  may  be  due  by  vir- 
tue of  said  mortgage;  and  upon  appearance,  the  Court  is 
authorized  to  give  judgment ;  but  if  the  scire  facias  be  re- 
turned nihil,  an  alias  scire  facias  may  be  issued ;  and  if 
the  alias  be  returned  nihil,  or  if  the  defendant  appear 
and  plead,  or  make  default,  the  Court  may  proceed  to 
give  judgment  with  costs :  "  And  also  that  the  mortgaged 
premises  be  sold  to  satisfy  such  judgment,  and  may  award  or 
direct  a  special  writ  of  fieri  facias  for  that  purpose.  PEO- 
VIDED,  HOWEVER,  that  the  judgment  aforesaid  shall  create  no 
lien  on  any  other  lands  or  tenements  than  the  mortgaged 
premises,  nor  shall  any  other  real  or  personal  property  of  the 
mortgagor  be  liable  to  satisfy  the  same."  (Gale's  Stat.  393; 
R.  L.  376.) 

The  scire  facias  authorized  by  the  above  section  of  the 

3 


-7  VANDALIA. 


Simpson  v.  Rawlings. 


judgment  and  execution  law,  is  not  an  action  in  the  ordinary 
acceptation  of  that  term ;  but  is  a  proceeding  in  rem.  The 
judgment  does  not  bind  the  administrator,  nor  does  it  affect  in 
the  least  degree  that  portion  of  the  intestate's  estate  that  is 
committed  to  his  charge.  If  a  mortgagee  were  to  be  delayed 
until  one  year  after  letters  of  administration  were  taken  out, 
it  would  often  happen  that  years  would  intervene  before  he 
could  enforce  his  lien.  No  such  consequences  could  have 
been  intended  by  the  legislature. 

Administration,  except  in  cases  of  insolvency,  only 
[*28]  extends  to*the  personal  estate ;  and  the  object  in  forbid- 
ding the  bringing  of  an  action  against  an  administrator 
for  one  year  after  the  taking  out  of  letters  of  administration, 
was  to  enable  the  administrator  to  ascertain  whether  the  estate 
of  the  intestate  were  insolvent,  in  which  event  the  debts  would 
be  classed,  and  paid  pro  rata.  The  reason  for  giving  this  time 
to  ascertain  the  situation  of  the  estate,  does  not  apply  to  a 
mortgage  creditor,  for  he  has  a  specific  lien  on  the  mortg?.ged 
premises,  which  is  not  affected  by  the  solvency  or  insolvency 
of  the  intestate's  estate.  We  are  therefore  of  opinion  that 
the  demurrer  to  the  defendant's  plea  ought  to  have  been  sus- 
tained. 

It  was  contended  in  the  argument  of  this  case,  that  the 
scire  facias  does  not  set  out  the  mortgage  in  full.  This  ob- 
jection, however,  can  not  be  taken  on  a  plea  in  abatement. 

The  judgment  of  the  Court  below  is  reversed  with  costs, 
and  the  cause  remanded  for  further  proceedings. 

Judgment  reversed. 


BIKD  M.  SIMPSON,  plaintiff  in  error,  v.  MOSES  M. 
RAWEINGS,  defendant    in  error. 

Error  to  Marion. 

JtmispiCTiOK  OF  JTJSTICE  OP  PEACE. — A  justice  of  the  peace  has  no 
jurisdiction  where  the  original  amount  of  the  demand  exceeds  one  hundred 
dollars,  though  it  may  have  been  reduced  below  that  sum  by  credits.* 

THIS  cause  was  tried  on  appeal  from  a  judgment  of  a  jus- 
tice of  the  peace  of  Marion  county,  before  the  Hon.  Thomas 

^Justice  of  peace — Jiirifdiction  as  to  amount.  See  Starr  &  C.  111.  Stat. 
1435.  Ch.  79,  f  13  and  notes  on  p.  1436  ;  Hugunin  v.  Nicholson,  post 
675;  Korsoki  v.  Foster,  20  111.  32;  Raymond  v.  Strobel,  24  III.  114. 


DECEMBER  TERM,  1832.  28 

Simpson  v.  Rawlings. 

C.  Browne,  at  the  September  term,  1832,  of  the  Marion  Cir- 
cuit Court. 

DAVIS  and  BKEESE,  for  the  plaintiff  in  error,  cited : 
I      R.  L.  1827,  259  §  1 ;   Breese,  263,  Ellis  v.  Snider-   Ibid. 
21,  Clark  v.  Cornelius;    Ibid.  153,  Maurer  v.  Derrick;  Ibid. 
293,  Blue  v.  Wier  and  Vanlandingliam;  1  Chit.  Plead.  298 
n.  1,  35T. 

EDDY,  for  the  defendant  in  error,  cited : 

1  Chit.  Plead.  92  n.  4;  14  Mass.  99;  5  Cowen,  195;  10 
Serg.  &  Rawle,  321;  12  Johns.  227;  1  Chit.  Plead.  91,  104, 
262 ;  3  Blac.  Com.  155 ;  Bui.  K  P.  171 ;  3  Saund.  182  n.  1 ;  1 
Bailey's  Index,  453 ;  1  Cranch,  285, 286  ;  2  Stark.  Ev.  123-302  ; 
Langham  v.  Boggs,  1  Missouri,  476,  575  ;  Buckner  v.  Amour, 
1  Missouri,  534 ;  1  Serg.  &  Rawle,  19,  20, 21. 

*  LOCKWOOD,  Justice,  delivered  the  opinion  of  the  [*29] 
Court: 

Rawlings  brought  an  action  before  a  justice  of  the  peace 
against  Simpson,  on  a  note  for  $110.47,  on  which  note  was 
indorsed  a  credit  of  $10.50,  leaving  a  balance  due  on  the 
note  of  $99.97.  On  the  31st  of  March,  1832,  the  justice  gave 
judgment  for  Rawlings  for  $99.97,  and  interest  on  that  amount, 
to  commence  from  the  llth  day  of  August,  1831.  From  this 
judgment  Simpson  took  an  appeal  to  the  Circuit  Court  of 
Marion  county,  where  the  judgment  of  the  justice  was  af- 
firmed. To  reverse  the  judgment  of  the  Circuit  Court,  a  writ 
of  error  has  been  sued  out  to  bring  the  cause  into  this  court, 
and  the  plaintiff  in  error  assigns  for  error  that  the  justice  of 
the  peace  had  no  jurisdiction  of  the  subject-matter  of  the 
suit.  By  the  "  Act  concerning  Justices  of  the  Peace  and 
Constable*"  justices  have  jurisdiction  " for  any  debt  claimed 
to  be  due  on  a  promissory  note,  contract,  or  agreement  in 
writing,  where  the  whole  amount  of  such  written  contract, 
agreement  or  note,  shall  not  exceed  one  hundred  dollars." 
(Gale's  Stat.  402.  See  also  pp.  414,  425  ;  R.  L.  386,401,415.) 

The  court  can  put  no  other  construction  upon  the  statute 
above  recited,  than  that  the  justice  has  no  jurisdiction  where, 
by  the  face  of  the  note,  a  larger  sum  is  stipulated  to  be  paid 
than  $100. 

The  credit  indorsed  on  the  note,  did  not  render  "  the  whole 
amount  of  the  note  "  less  than$lUO.  This  court  has  frequent- 
ly decided  that  where  the  u.imii:  exhibited  an  account 
against  the  defendant  for  more  than  $10U,  but  i  educed  the 
amount  due  to  less  than  $100  by  credits,  that  the  justice  had 


29  VANDALIA. 


Feade  v.  Simpson  and  Wade. 


no  jurisdiction ;  and  we  can  not  perceive  any  distinction  be- 
tween those  cases,  and  the  one  now  before  the  court.  We  are 
therefore  of  opinion  that  the  judgment  must  be  reversed  be- 
cause the  justice  of  the  peace  had  no  jurisdiction  of  the 
cause. 

Judgment  reversed. 

NOTE  BY  SCAMMON.  Since  the  decision  of  this  cause,  an  act  has  beenpassed, 
eiving  to  justices  of  the  ,peace  jurisdiction  in  cases  where  the  original  in- 
debtedness exceeds  one  hundred  dollars,  but  has  been  reduced  below  that 
sum  by  fair  credits.  Gale's  Stat.  425;  R.  L.  415.  See  Hugunin  v.  Nichol- 
son, decided  December  term,  1839,  post. 


[*30]     *  JOHN  M.  FEAZLE,  plaintiff  in  error,  v.  BIRD  M. 
SIMPSON  and  JESSE  M.  WADE,  defend  ants  in  error. 

Error  to  Marion. 

MALICIOUS  PKOSECUTION— PLEADING  AND  PRACTICE. — The  doctrine  is 
well  settled,  that  an  action  for  malicious  prosecution  can  not  be  brought  be- 
fore the  first  suit  has  been  legally  determined,  and  it  must  be  averred  that 
the  former  suit  terminated  in  the  present  plaintiff's  favor.  A  legal  conclu- 
sion of  the  suit  must  be  shown.  If  the  suit  be  proved  not  to  have  been 
determined  in  the  manner  alleged,  it  is  a  good  ground  of  nonsuit.* 

COMMENCEMENT  OP  SUIT. — The  issuing  of  the  summons  is  the  commence- 
ment of  a  suit.b 

THIS  was  an  action  on  the  case  commenced  January  16, 
1832,  for  the  malicious  prosecution  of  a  suit,  by  attachment, 
against  the  defendants  in  error,  by  the  plaintiff  in  error,  as 
agent  of  one  John  H.  Gay.  The  declaration  originally  con- 
tained but  one  count,  which  averred  that  the  plaintiff  in  error, 
"  as  agent  of  John  II.  Gay,"  on  the  16th  day  of  January,  1832, 
complained  maliciously,  and  without  any  probable  cause  for  so 

CITED:  Malicious  prosecution:  18  111.  115;  7  Brad.  373;  13  Brad.  116. 
What  is  commencement  of  suit:  104  111.  76;  3  Brad.  183. 

•  Malicious  prosecution — Action  for,  when  may  be  commenced.  In  sup- 
port of  the  doctrine  of  the  above  case,  see  Hamil burgh  v.  Shepard,  119 
Mass.  30;  Cardival  v.  Smith,  109  Mass.  158;  Brown  v.  Randall.  36 
Conn.  56;  Feltt  v.  Davis,  49  Vt.  151;  Ribbing  v.  Hyde,  50  Cal.  206;  Gorrell 
v.  Snow,  31  Ind.  215.  Compare  Graves  v.  Dawson,  133  Mass.  419. 

b  The  general  rule  as  to  time  of  commencement  of  suit  seems  to  be  as 
dbore  stated.  Swift  v.  Crocker,  21  Pick.  241 ;  Sharp  v.  Maguire,  19  Cal. 
577;  Day  r.  Lamb,  7  Vt.  426;  Parker  v.  Colcard,  2  N.  H.  36;  Lowry  v.  Law- 
rence. 1  Cai.  69. 

Strrice  of  the  writ  has  been  held  to  constitute  commencement  of  suit. 
Gatfs  r.  Bushncll.  9  Conn.  530;  Downer  v.  Garland,  12  Vt.  362;  also  deliv- 
ery of  writ  to  officer:  Randolph  v.  Hill,  11  Ind.  354;  Ross  v.  Luther,  4 
Cow.  158.  See  Starr  &  C.  111.  Stat.,  1772,  notes. 

6 


DECEMBEK  TERM,  1832.  30 

Feazle  v.  Simpson  and  Wade. 

doing,  before  the  clerk  of  the  Circuit  Court  of  Marion  county, 
that  the  defendants  in  error  were  indebted  to  said  John  H. 
Gay,  in  the  sum  of  $600,  and  were  about  to  depart  from 
this  State,  with  the  intention  of  having  their  effects  and 
personal  estate  removed  without  the  limits  of  the  same,  and 
thereby  obtained  a  writ  of  attachment  against  them,  etc.,  and 
by  virtue  of  which  the  sheriff  of  said  county  attached  sundry 
articles  of  personal  property  of  the  defendants  in  error,  etc., 
etc.;  and  that  afterward,  to  wit,  at  the  following  March  term 
of  said  Court,  said  attachment  was  quashed,  etc.  The  plaintiff 
in  error  demurred  to  the  declaration,  and  -the  demurrer  was 
overruled  by  the  Court. 

The  defendants  in  error  then  amended  their  declaration 
by  adding  another  count,  like  the  first,  except  that  the 
words  "  as  agent  of  John  H.  Gay,"  were  not  inserted.  To  this 
second  count  the  plaintiff  in  error  pleaded  not  guilty.  The 
cause  was  tried  at  the  September  term,  1832,  of  the  Marion 
Circuit  Court,  before  the  Hon.  Thomas  C.  Browne  and  a  jury, 
and  judgment  rendered  against  the  plaintiff  in  error  for  fifty 
dollars  and  costs.  From  this  judgment  he  prosecuted  a  writ 
of  error  to  this  Court. 

On  the  trial  in  the  Court  below,  the  record  of  the  suit  of 
John  H.  Gay  against  the  defendants  in  error,  was  admitted  in 
evidence,  though  objected  to  by  the  plaintiff  in  error,  who  ex- 
cepted  to  its  admission. 


.  H.  BROWN,  for  the  plaintiff  in  error,  contended,  that 

1st.  The  action  does  not  lie  against  Feazle,  if  it  lies  at  all. 
Feazle  is  said  to  be  an  agent. 

An  agent  is  not  in  general  liable  to  third  persons,  for  a 
neglect,  *non-feasance,  or  mal-f  easance,  when  acting  with      [*31] 
the  express  or  implied  authority  of  principal.     1  Chit- 
ty,  71-2. 

No  one  can  be  liable  for  a  tort  or  trespass  as  an  agent.  He 
is  personally  responsible. 

An  action  for  malicious  prosecution  can  not  be  supported 
against  an  attorney.  1  Chitty,  71-2. 

2d.  An  action  does  not  lie  in  this  case,  it  being  a  suit  com- 
menced by  attachment.  The  remedy  is  alone  upon  the  bond. 
R  L.  1827,  70;  R.  L.  85;  Gale's  Stat.  65. 

To  sustain  this  action,  there  must  be  an  arrest.  The  gist 
of  the  action  is  the  unfounded  arrest.  2  Chitty,  599,  and  au- 
thorities there  cited  ;  3  Sel.  939. 

Suit  does  not  lie  where  bail  is  not  demanded.  2  Stark. 
921. 

An  action  will  not  lie  if  there  was  a  cause  of  action  (excep- 


31  VANDALIA. 


Feazle  v.  Simpson  and  Wade. 


tion  as  to  holding  to  bail  for  a  greater  sum  than  due).  Bui. 
N.  P.  11,  12  ;  2  Stark.  910,  note. 

No  action  can  be  supported  for  malicious  suit.  2  Chitty, 
599  ;  1  John.  Dig.  16. 

If  an  action  will  lie  in  this  case,  it  should  have  been  al- 
leged that  defendant  &7m0  either  that  no  debt  was  due,  or  that 
plaintiffs  were  not  going  to  depart.  3  Esp.  Rep.  34. ;  Bui.  N. 
P.  12. 

3d.  I  is  not  alleged  that  there  was  not  a  probable  cause  of 
action.  This  averment  is  necessary.  2  Chitty,  599. 

It  is  not  alleged  that  the  first  suit  was  ever  determined. 
Only  said  that  the  process  was  quashed  and  dismissed.  2  Chit- 
ty, 604,  and  notes 

4th.  This  action  was  brought  before  the  first  was  deter- 
mined. New  action  can  not  be  brought  until  the  first  is 
disposed  of.  Bui.  N.  P.  12  ;  1  Saund.  228,  note  B  ;  2  Chitty, 
604. 

The  writ  was  sued  out  against  F.  on  the  16th  January, 
1832,  and  the  attachment  dismissed  March  term,  1832. 

The  Court  erred  in  permitting  a  record  of  Gay  v.  8.  and 
Wade,  to  be  read. 

WALTER  B.  SCATES,  for  the  defendants  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
Simpson  and  Wade  commenced  an  action  against  Feazle  in 
the  Circuit  Court  of  Marion  county,  for  maliciously,  and  with- 
out probable  cause,  making  a  complaint  that  they  were  in- 
debted to  John  H.  Gay,  and  suing  out  of  said  Court  an  attach- 
ment against  their  goods  and  chattels.  The  summons  in  this 
cause  was  issued  on  the  16th  Jan.,  1832.  The  declaration 
states  that  the  attachment  was  issued  on  the  16th  Jan.,  1832, 
and  that  afterward,  at  the  March  term,  1832,  of  said  Circuit 
Court,  the  attachment  was  quashed  and  dismissed,  being  found 
"  to  be  causeless,  vexatious,  and  sued  without  any  color 
[*32]  of  law  to  warrant  the  same."  On  the  *trial  of  the  cause, 
the  plaintiff  below  offered  in  evidence  the  record  in  the 
suit  of  John  H.  Gay  against  the  defendants,  to  prove  the 
making  of  the  complaint,  the  issuing  of  the  attachment, 
and  the  dismissal  of  the  same  ;  to  the  introduction  of  which 
record,  the  defendant  below  objected  ;  but  the  Court  overruled 
the  objection,  and  suffered  the  record  to  be  given  in  evidence 
to  the  jury.  To  the  reception  of  which  testimony,  the  defend- 
ant below  excepted,  and  the  cause  is  brought  into  this  Court 
by  agreement  of  the  parties. 

Although  other  questions  were  raised  in  the  Court  below 
s 


DECEMBER  TERM,  1832.  32 

Clifton  v.  Bogardus. 

yet  it  is  necessary  only  to  decide  whether  the  record  given  in 
evidence  to  the  jury  was  admissible.  On  this  point  the  doc- 
trine is  well  settled,  that  an  action  for  malicious  prosecution 
can  not  be  brought  before  the  first  suit  has  been  legally  deter- 
mined ;  and  it  must  be  averred,  that  the  former  suit  terminated 
in  the  present  plaintiff's  favor,  and  a  legal  conclusion  of  the 
suit  must  be  shown ;  and  if  the  suit  be  not  proved  to  have 
been  determined  in  the  manner  alleged,  it  is  a  ground  of  non- 
suit.4 The  issuing  of  a  summons  is  the  commencement  of  a 
suit ;  and.  consequently,  the  record  received  in  evidence,  was 
inadmissible,  as  it  would,  if  it  were  the  record  of  the  proceed- 
ings mentioned  in  the  declaration,  prove  the  termination  of 
the  former  suit  to  have  been  long  after  the  commencement 
of  this  suit.  Such  a  fact  could  not  contribute  to  support 
the  action,  and  consequently  the  record  ought  to  have  been 
rejected.  For  this  error  the  judgment  must  be  reversed  with 
costs. 

Judgment  reversed. 


MARY  CLIFTON,  plaintiff  in  error,  v.  JOHN  L.  BOGAKDUS, 
defendant  in  error. 

Error  to  Peoria. 

WITNESSES — COMPETENCY. — It  is  a  general  rule  that  all  persons  are 
competent  witnesses  who  have  sufficient  understanding,  and  are  not  disqual- 
ified by  interest,  crime,  or  want  of  a  proper  sense  of  moral  obligation  to 
speak  the  truth. 

In  a  trial  of  the  right  of  property,  the  defendant  in  execution  is  a  compe- 
tent witness  for  the  claimant.  The  interest  which  disqualifies,  must  be  in 
favor  of  the  party  calling  the  witness. 

THIS  cause  was  tried  at  the  September  term,  1832,  before 
the  Hon.  Richard  M.  Young  and  a  jury,  and  a  verdict  rendered 
for  the  defendant.  To  reverse  this  judgment,  Mary  Clifton 
brought  a  writ  of  error  in  this  Court. 

*L.  BIGELOW,  for  the  plaintiff  in  error,  cited  the  fol-  [*33] 
lowing  authorities : 

2  Stark.  Ev.  398,  744  et  seq.,  751 ;  3  Stark.  Ev.  1355, 
1647 ;  Cushman  v.  Loker,  2  Mass.  108  ;  Webster  v.  Lee,  5 
Mass.  334 ;  Baker  v.  Prentiss,  6  Mass.  430  ;  Emerson  v. 

See  notes  to  2  Chitty,  603,  and  the  authorities  there  cited.  Competency 
of  witness.  See  Starr  &  C.  111.  Stat.  1071  Ch.  51,  \  1,  notes. 


33  VANDALIA. 


Clifton  v.  Bogardus. 


Prov.  Hat  Man.  Co.,  12  Mass.  237  ;  Bland  v.  Ausley,  2  Bos. 
and  Pul.  331 ;  Herbert  et  al.  v.  Herbert,  Breese,  278. 

T.  FORD,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court :  \ 
Upon  a  judgment  in  favor  of  the  defendant,  Bogardup, 
against  Moses  Clifton,  an  execution  was  issued  and  levied  on 
property  claimed  to  be  the  property  of  Mary  Clifton.  Upon 
the  trial  of  the  right  of  property  between  Mary  Clifton  and 
Bogardus,  in  the  Circuit  Court,  Moses  Clifton  was  called  by 
the  plaintiff  to  support  her  title  ;  but  his  testimony  was  re- 
jected by  the  Court,  because  he  was  the  debtor  in  the  execu« 
tion  upon  which  the  property  was  taken.  This  is  the  error 
relied  upon  for  the  reversal  of  the  judgment  of  the  Circuit 
Court.  It  is  a  general  rule  that  all  persons  are  competent 
witnesses  who  have  sufficient  understanding,  and  are  not  dis- 
qualified by  interest,  crime,  or  want  of  a  proper  sense  of  mor- 
al obligation  to  speak  the  truth.  It  does  not  appear  from  the 
record  of  this  cause,  that  any  of  these  objections  were  appli- 
cable to  the  witness  whose  testimony  was  rejected  by  the 
Court.  His  being  the  debtor,  against  whom  the  execution 
was  issued,  did  not  make  him  a  party  in  the  trial  of  the  right 
of  property  between  Bogardus  and  Mary  Clifton ;  and  what- 
ever interest  he  had  in  the  result  of  that  trial  was  against  the 
party  producing  him.  If  the  decision  had  been  in  favor  of 
the  claimant,  the  property  upon  which  the  execution  was  lev- 
ied would  have  become  exempt  from  its  operation,  and  he 
would  have  remained  liable  for  its  satisfaction.  If,  on  the 
contrary,  it  had  appeared  that  the  claim  was  not  well  founded, 
the  property  would  have  been  taken  in  satisfaction  of  the 
execution  ;  a  debt  for  which  he  was  bound  would  have  been 
satisfied  out  of  the  property  of  a  third  person  and  no  legal 
liability  would  have  been  imposed  upon  him  to  answer  over  to 
that  person  for  its  value.  The  party  producing  him  was  the 
only  one  that  could  have  objected  to  his  testimony. 

The  interest  which  disqualifies,  must  be  in  favor  of   the 
party  calling  the  witness.     The  reverse  of  this  position  is  true 
in  the  present  case.     The  court  therefore  erred  in  re- 
[*34]    jecting  the  ^testimony  of  the  witness,  and  the  judg- 
ment must  be  reversed  with  costs,  and  the  cause  re- 
manded to.  the  court  below. 

Judgment  reversed. 

BROWNE,  J.,  was  not  present  at  the  argument  of  this  cause. 
10 


DECEMBER  TERM,  1832.  34- 

Beezley  v.  Jones. 


NATHANIEL  BEEZLEY,  assignee  of  SILAS  BEEZLEY, 
plaintiff  in  error  v.  WILLIAM  A.  JONES,  defendant 
in.  error. 

Error  to  Vermilion. 

DEEDS — MUTUAL  COVENANTS — ASSIGNABILITY. — Deeds  or  obligations, 
containing  mutual  covenants,  are  not  assignable. 

One  covenant  in  an  obligation  or  contract  containing  several  covenants, 
can  not  be  assigned  without  the  other. 

Semble,  that  instruments  in  writing  for  the  conveyance  of  land,  or  for 
the  performance  of  personal  duties,  are  not  assignable. 

THIS  was  an  action'of  covenant  commenced  in  the  Vermilion 
Circuit  Court.  At  the  October  term,  1832,  the  cause  was 
heard  before  the  Hon.  Williapi  Wilson,  upon  demurrer  to  the 
plaintiff's  declaration,  and  judgment  rendered  for  the  de- 
fendant. 

S.  McRoBERTS,  for  the  plaintiff  in  error,  cited  R.  L.  1827 
320 ;  Breese,  300  ;  Chitty  on  Bills,  5,  6,  7. 

E.  B.  WEBB,  for  the  defendant  in  error,  cited  R.  L.  1827, 
320;  Breese,  300;  1  Blackf.  148;  1  Peters'  Cond.  R.  416;  2 
do.  307;  Dig.  South,  and  West.  Rep.  77. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 

Silas  Beezley  covenanted  by  deed  with  William  A.  Jones,  to 
lease  to  him  a  house,  carding  machine,  and  apparatus,  for  a 
specified  time,  and  further  agreed  to  be  at  the  expense  of  re- 
pairing the  machine  in  case  of  any  failure.  Jones,  on  his  part, 
covenanted  to  pay  one  hundred  and  seventy  dollars  rent,  by 
installments;  and,  at  the  expiration  of  the  term,  to  return  the 
machine,  etc.,  in  the  same  order  he  received  them,  the  common 
wear  excepted. 

This  deed  is  assigned,  by  indorsement,  to  the  plaintiff,  who 
sues,  in  his  own  name,  for  a  breach  of  the  covenant  to  pay  the 
rent.  The  declaration  is  demurred  to,  and  the  demurrer  sus- 
tained by  the  Circuit  Court. 

The  question  presented  by  this  statement  of  the  case,  is, 
whether  the  statute  of  1827  (R.  L.  482;  Gale's  Stat.  525),  ha* 
made  the  instrument  upon  which  this  action  is  brought,  nego- 
tiable. That  statute  makes  not  only  bonds  and  notes  for  the 

CITED  :  20  111.  103;  106  111.  290. 

11 


YANDALIA. 


Bcezley  ».  Jones. 


payment  of  money,  but  also  all  written  engagements  for  the 
payment  or  delivery  of  articles  of  personal  property,  or  for  the 

payment  of  money  in  personal  property,  negotiable. 
[*86]  Instruments  of  this  sort,  from  the  usual  course  of  *trade 

in  this  country,  are  more  frequently  made  than  notes 
for  the  payment  of  money.  The  convenience  of  trade,  it  was 
thought  by  the  legislature,  required  that  such  instruments  of 
writing  should  be  negotiable ;  and  they  are  made  so  by  the  ex- 
press language  of  the  legislature.  But  neither  the  language  of 
the  statute,  nor  the  policy  that  occasioned  its  enactment,  em- 
brace instruments  in  writing  for  the  conveyance  of  land,  or  for 
the  performance  of  personal  duties ;  and  the  legislature  never 
intended  to  impart  a  negotiable  quality  to  a  written  agree- 
ment for  the  performance  of  perhaps  twenty  stipulations 
of  different  characters,  merely  because  it  contained  one  for  the 
payment  of  money,  or  the  delivery  of  an  article  of  personal 
property.  The  deed  upon  which  this  action  is  brought  con- 
tains mutual  covenants;  those  on  the  part  of  the  defendant  are 
to  pay  one  hundred  and  seventy  dollars  rent,  and,  at  the  expira- 
tion of  his  lease,  to  return  the  machine,  etc.  If  the  whole  inter- 
est in  this  deed  can  be  transferred  by  assignment  to  the  plaintiff, 
he  would  be  entitled  to  recover  for  a  breach  of  either  or  both 
of  these  covenants,  and  the  assignor  would  be  left  without  a 
remedy  for  the  detention  or  destruction  of  his  property.  This 
result  was  certainly  never  contemplated  by  either  the  assignor 
or  assignee.  Such  a  transfer  is  not  authorized  by  the  statute. 
Nothing  more  was  intended  to  be  transferred  than  the  simple 
covenant  to  pay  one  hundred  and  seventy  dollars.  The  con- 
tract is  indivisible,  and  one  covenant  can  not  be  assigned  with- 
out the  other.  The  recognition  of  such  a  principle  would 
work  great  injustice  by  multiplying  actions,  and  enabling  one 
party  to  a  contract  to  subject  the  other  to  the  separate  actions 
of  as  many  different  assignees  as  it  might  contain  covenants. 
The  judgment  of  the  Court  below  is  affirmed,  with  costs. 

Judgment  affirmed. 

12 


DECEMBER  TERM,  1832.  35 

Reynolds  v.  Hall  et  al. 


JOHN  REYNOLDS,  Governor  of  the  State  of  Illinois, 
plaintiff  in  error,  v.  JAMES  HALL,  TIMOTHY  GUARD, 
JOHNTILLSON,  JR.,  CHARLES  SLADE,  FRANCIS  PRINCE, 
CHARLES  PRENTICE,  JAMES  B.  CAMPBELL,  ALFRED 
W.CAVARLY,  and  J.M.  DUNCAN,  defendants  in  error. 

Error  to  Fayette. 

CONSTRUCTION  OF  CONTRACTS.— The  laws  in  force  at  the  time  of  the 
making  of  contracts,  form  a  portion  of  their  essence,  and  they  must  be  con- 
sidered as  entered  into  with  reference  to  such  laws,  and  be  so  construed. 

SURETY — LIABILITY. — The  contract  of  a  surety  is  to  be  construed  strictly, 
both  in  law  and  equity,  and  his  liability  is  not  to  be  extended  by  implication 
beyond  the  terms  of  his  contract. 

*The  sureties  of  the  late  State  Treasurer,  are  not  liable  for  his  acts  [*36J 
as  cashier  of  the  old  State  Bank. 

It  is  a  well  settled  rule,  that  a  surety  can  not  be  held  beyond  the  express 
terms  of  his  undertaking,  as  understood  by  the  parties,  when  the  contract 
was  entered  into.* 

THIS  cause  was  tried  at  the  October  term,  1831,  of  the  Fay- 
ette Circuit  Court,  before  the  Hon.  Theophilus  W.  Smith.  The 
verdict  of  the  jury  was  in  favor  of  the  plaintiff  in  error,  for  the 
sum  of  fourteen  hundred  and  fifty  dollars  and  forty-eight 
cents.  Judgment  was  rendered  upon  this  verdict. 

CITED:  12  111.  17,  296;  74  111.  487. 

"Liability  of  surety. 

"  The  sureties  of  an  officer  upon  his  official  bond  are  liable  for  the  faithful 
performance  of  all  duties  imposed  upon  such  officer,  whether  by  laws  en- 
acted previous  or  subsequent  to  the  execution  of  the  bond,  which  properly 
belong  to  and  come  within  the  scope^  of  the  particular  office,  and  not  for 
those  which  have  no  connection  with  it,  and  can  not  be  presumed  to  have 
entered  into  the  contemplation  of  the  parties  at  the  time  the  bond  was  exe- 
cuted." Governor  v.  Ridgway,  12  111.  14,  19.  See  also,  Smith  v.  Peoria 
Co.,  59  111.  412;  People  v.  Tompkins,  74  111.  482. 

A  surety  upon  an  official  bond  is  not  liable  for  the  default  of  his  principal 
in  the  discharge  of  duties  imposed  subsequent  to  the  execution  of  the  bond. 
Denio  v.  State,  60  Miss.  949.  Contra:  Board  of  Education  v.  Quick,  99  N. 
Y.  138.  See  Monroe  Co.  Supervisors  t>.  Clarke,  25  Hun,  282. 

See  Dawson  v.  State,  38  0.  St.  1,  wherein  it  was  held  that  an  official 
bond  conditioned  for  the  discharge  of  the  duties  of  office  "according  to 
law  "  embraced,  duties  required  by  a  law  enacted  subsequent  to  the  execution 
of  the  bond.  In  Detroit  Savings  Bank  v.  Ziegler,  49  Mich.  157,  it  was  held 
that  the  official  bond  of  a  receiving  teller  in  the  savings  department  of  a 
bank  covered  duties  performed  by  him  as  general  teller  in  the  temporary 
absence  of  that  officer. 

Compare  State  v.  Odorn,  88  N.  C.  432;  Wake  Co.  Com'rs  v.  Maguire.  86 
N.  C.  285;  McKee  v.  Griffin,  66  Ala.  211. 

Sureties  on  an  official  bond  are  not  discharged  from  liability  by  legisla- 
tion subsequent  to  the  execution  of  the  bond  modifying  the  duties  of  the 
office  held  DV  their  principal. 

People  v.  Vilas,  36  N.  T.  459;  Mayor  v.  Sibberns  [Ryan],  3  Abb.  Ct.  App. 
Dec.  266;  35  How.  Pr.  408. 

13 


36  VANDALIA. 


Reynolds  v.  Hall  et  al. 


ALFRED  COWLES,  for  the  plaintiff  in  error. 

CAVABLY  and  McRonEirrs,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  acton  of  debt  brought  against  James  Hall  and 
his  sureties,  on  his  official  bond,  given  for  the  faithful  perform- 
ance of  his  duties  as  Treasurer  of  the  State  of  Illinois,  to  which 
office  he  had  been  elected  on  the  28th  day  of  December,  1828, 
by  the  vote  of  the  legislature.  The  bond  is  dated  on  the  16th 
day  of  January,  1829,  and  was  approved  by  the  plaintiff,  in  his 
executive  character,  on  the  22d  day  of  the  same  month.  The 
condition  of  the  bond,  after  reciting  that  the  defendant,  James 
Hall,  had  been  elected  Treasurer  of  the  State  of  Illinois  for 
two  years,  is  as  follows:  "Now,  if  the  said  James  Hall  shall 
well  and  faithfully  perform  the  duties  of  his  said  office,  for  and 
during  his  said  term,  then  this  obligation  shall  be  void ;  other- 
wise, it  shall  be  and  remain  in  full  force." 

The  defendants  replied — 1st.  General  performance.  2d.  That 
the  defendant,  Hall,  had  faithfully  accounted  for  and  paid  over 
all  moneys  received  by  him,  for  which  his  sureties,  as  State 
Treasurer,  were  chargeable  in  this  action,  according  to  the  tenor 
and  effect  of  their  bond.  3d.  Set-off  for  certain  sums,  for 
which  the  State  is  indebted  to  said  Hall  for  moneys  deposited 
in  bank,  and  certain  expenditures  of  said  defendant  for  and  on 
account  of  said  State ;  to  which  the  plaintiff  rejoined  and  took 
issue. 

On  the  trial  of  the  cause,  a  report  of  the  situation  of  the 
State  Bank  of  Illinois,  at  Vandalia,  dated  on  the  1st  January, 
1831,  signed  by  the  said  Hall,  as  treasurer,  showing,  among 
other  things,  that  he  had  received,  on  account  of  said  bank, 
considerable  sums  from  the  branch  cashiers  of  said  bank,  in 
the  notes  of  said  bank,  was  offered  in  evidence ;  to  the  admis- 
sion of  which  report  as  evidence,  the  defendants  objected ; 
which  objection  was  sustained,  and  to  which  opinion  of  the  Court, 
in  refusing  to  admit  the  report  as  evidence,  the  plaintiff  ex- 
cepted.  The  bill  of  exceptions  contains  other  matters  to  which 
it  is  not  necessary  to  refer,  as  the  additional  points  reserved 
in  the  bill  have  been,  on  the  argument,  abandoned  by  the 
[*37]  plaintiff's  counsel.  The  only  point  *relied  on,  among  the 
causes  assigned  for  error,  is  the  rejection  of  the  report 
offered  as  evidence. 

On  the  part  of  the  sureties  of  Hall,who  are  co-defendants,  it  is 
insisted  that  no  evidence  of  the  receipts  of  the  funds  or  effects 
of  the  State  Bank,  by  Hall,  by  virtue  of  the  act  of  the  legisla- 
ture of  23d  January,  1829,  or  any  subsequent  law  of  the  State, 
11 


DECEMBER  TERM,  1832.  37 

Reynolds  v .  Hall  et  al. 

imposing  on  Hal^  the  late  treasurer,  the  duties  of  cashier  of 
such  bank,  could  be  introduced  as  legal  evidence,  to  charge 
them  with  a  liability  in  case  of  a  misapplication  of  such  effects 
or  funds  of  the  bank  by  the  late  treasurer,  and  this  is,  as  I 
understand,  conceded  to  be  the  only  point  to  be  examined  and 
determined. 

In  the  consideration  of  this  question,  it  is  necessary  to  recur 
briefly  to  the  Constitution  of  the  State,  creating  the  office  of 
treasurer,  and  the  act  of  the  legislature,  denning  his  duties. 
The  office  of  State  Treasurer  is  created  by  the  21st  section  of 
the  3d  article  of  the  constitution;  and  the  act  of  the  24th 
March,  1819,  "defining the  duties  of Auditor  and  Treasurer" 
was  the  only  law  in  force,  at  the  time  of  the  execution,  deliv- 
ery and  approval,  and  acceptance  of  the  bond.  The  7th  sec- 
tion of  the  act  requires  the  treasurer  to  give  bond  in  the  sum 
of  twenty  thousand  dollars,  and  the  residue  of  its  provisions 
relate  to  the  performance  of  duties,  in  regard  to  the  fiscal 
operations  of  the  State  Treasury,  and  nothing  else. 

Under  this  law,  then,  we  are  to  determine  the  liabilities  of 
the  sureties  and  whether  they  can  be  held  responsible  for 
other  duties  cast  upon  the  treasurer,  by  the  act  of  1829,  after 
the  execution,  approval,  and  acceptance  of  the  bond. 

Without  examining  the  question  which  might  here  arise,  as 
to  what  duties  might  thus  be  cast  upon  the  treasurer,  and 
their  appropriateness,  it  will  be  sufficient  to  inquire  into  the 
character  of  the  act  of  23d  January,  1829,  entitled  "An  act  to 
amend,  an  act,  supplementary  to  an  act  establishing  the  State 
Bank  of  Illinois^  approved  January  10,  1825"  By  the 
7th  section  of  that  act,  it  is  declared,  "that  the  treasurer  shall 
discharge  all  the  duties  required  of  the  cashier  of  said  bank, 
by  the  act  establishing  the  State  Bank  of  Blinois."  From 
this  provision  it  is  manifest  that  the  legislature  cast  upon  the 
treasurer  the  office  of  cashier,  and  thereby  constituted  the 
treasurer  cashier  of  the  bank  de  facto.  Having  by  law  im- 
posed this  new  office  upon  him,  and  created  new  liabilities  and 
new  duties,  of  a  character  not  only  unconnected  with  the  office 
of  treasurer,  but  of  a  diversified  and  entirely  different  nature, 
can  it  be  contended  that  the  sureties  on  Ins  bond  are  justly 
and  legally  responsible  for  his  want  of  fidelity  in  the  discharge 
of  this  new  trust?  It  will  be  recollected  that  the  cashier  of 
the  bank  was  required  by  law  to  give  security  in  the  sum  of 
$50,000 ;  arid  why,  on  the  transfer  of  his  duties,  ad- 
ditional security  from  the  treasurer  was  not  *required,  [*38] 
it  is  not  for  this  tribunal  to  determine.  No  increase 
of  the  treasurer's  bond  was  required  ;  and  it  is  inconsistent 
with  the  idea  derived  from  the  requirements  of  the  law  cre- 

15 


88  YANDALIA. 


Reynolds  r.  Hall  et  al. 


ating  the  bank,  to  suppose  that  the  sum  of  $20,000  required  by 
the  treasurer's  bond,  would  have  been  deemed  sufficient, 
when  these  new  and  important  and  responsible  duties  were 
thus  transf erred,  by  a  transfer  of  the  office  of  cashier. 

The  question  then  presented  for  consideration  and  decision 
is,  not  whether  it  is  within  the  bounds  of  legislative  compe- 
tency to  impose  additional  duties  on  the  treasurer,  connected 
with  his  office  ;  nor  whether  those  duties  are  appropriate  or 
not ;  but  whether,  by  law,  there  has  not  in  fact  been  cast  on 
the  treasurer  an  additional  office,  and  he  required  to  discharge 
the  duties  required  by  law  of  the  former  incumbent.  If  this 
be  so,  then  it  can  not  be  doubted  that  such  of  the  defendants 
as  are  mere  sureties  of  the  treasurer,  can  not  be  holden 
responsible  for  the  acts  of  the  same  individual  in  the  perform- 
ance of  the  duties  of  the  office  thus  cast  upon  him.  But  if 
there  can  be  a  doubt  entertained  as  to  such  an  interpretation 
of  the  act  of  1829,  and  whether  or  not  it  did  not  cast  on  the 
treasurer  a  distinct  and  additional  office,  and  the  performance 
of  its  duties,  still  there  is  no  rule  of  law  better  settled — one 
which  has  received  the  universal  sanction  of  all  tribunals — 
that  the  laws  in  force  at  the  time  of  the  making  of  contracts, 
form  a  portion  of  their  essence,  and  that  they  must  be  consid- 
ered as  entered  into  with  reference  to  such  laws,  and  be  so 
construed.  The  act  of  "  24th  March,  1819,  defining  the  duties 
of  treasurer,"  was  the  only  law  in  existence  at  the  time  of 
entering  into  the  bond;  and  by  it  the  rights  and  liabilities  of 
the  respective  parties  must  be  ascertained  and  determined. 
The  sureties,  when  they  signed  the  bond  and  entered  into  the 
covenant,  could  not  be  supposed  to  look  elsewhere  to  ascer- 
tain the  nature  and  extent  of  their  liability.  They  saw  that 
$20,000  was  the  extent,  and  that  the  duties  which  were  re- 
quired of  the  treasurer  related  alone  to  the  fiscal  concerns  of 
tne  State,  as  defined  in  that  law,  and  not  to  duties  appertain- 
ing to  a  moneyed  institution  of  a  varied  and  peculiar  charac- 
ter. It  will  be  apparent  that  they  could  not  have  anticipated 
that  the  legislature  intended,  or  would  have  subsequently  cast 
on  the  defendant,  Hall,  the  office  and  duties  which  were  in 
fact  so  cast,  afterward  upon  him.  Apart,  however,  from 
this  view  of  the  case,  there  is  another  which  is  considered 
decisive  as  to  the  extent  of  the  liability  of  the  sureties. 

The  contract  of  a  surety  is  to  be  considered  strictly,  both  in 
law  and  equity,  and  his  liability  is  not  to  be  extended,  by  impli- 
cation, beyond  the  terms  of  his  contract.  To  the  extent,  and  in 
the  manner,  and  under  the  circumstances  pointed  out  in 
his  Obligation,  is  he  bound,  and  no  further  (Miller  v.  [*39] 
Stewart  et  al.  9  Wheat.  680).  In  a  case  also  determined  in 

16 


DECEMBER  TERM,  1832.  39 

Reynolds  v.  Hall  et  al. 

the  United  States  Court  (  U.  8.  v.  RirTcpatriclc,  9  Wheat.  729), 
it  was  decided  that  under  a  bond  given  on  the  4th  December, 

1813,  conditioned  for  the  faithful  discharge  of  the  duties  of 
his  office,  by  a  collector  of  direct  taxes  and  internal  duties, 
who  had  been  appointed  under  the  act  of  July  22,  1813,  by 
the  president,  on  the   llth  of  November,  1813,  to  hold  his 
office  until  the   end   of  next  session  of  the  Senate,  and  no 
longer,  and  was  re-appointed  to  the  same  office,  January  24, 

1814,  by  the  president,  by  and  with  the  advice  and  consent  of 
the  Senate,  to  hold  his  office  during  the  pleasure  of  the  presi- 
dent, for  the  time  being,  the  liabilities  of  the  sureties  are  re- 
stricted to  the  duties  imposed  by  the  collection  acts,  passed 
antecedent  to  the  date  of  the  bond. 

The  act  of  1829  could  not  be  retroactive  in  its  operations, 
but  was  entirely  prospective.  Although  it  imposed  new  and 
additional  duties  on  the  treasurer,  of  a  character  in  nowise 
connected  with  the  office  of  treasurer,  and  which,  if  it  even 
be  conceded,  were  mere  duties  appendant  to  the  office  of  treas- 
urer, created  by  the  act  of  23d  January,  1829,  and  was  notthe 
transfer  of  an  additional  office  on  him,  and  that  in  the  charac- 
ter of  cashier,  still  the  liabilities  of  the  sureties  could  not  be 
enlarged,  or  changed  in  any  way,  from  what  they  actually 
were  prior  to  the  passage  of  this  law. 

As  then  the  act  of  1829  could  in  no  wise  interfere  with  the 
condition  of  the  bond,  could  impose  no  new  liabilities,  nor  in 
any  way  change  its  character,  or  extend  its  operations,  by  im- 
plication, I  am  of  opinion,  that  the  judgment  of  the  Circuit 
Court  should  be  affirmed. 

/Separate  Opinion  of  LOOKWOOD,  Justice.  I  concur  in  opin- 
ion, that  the  judgment  of  the  Circuit  Court  ought  to  be  af- 
firmed, upon  the  ground  that  the  sureties  of  the  treasurer 
could  not  have  contemplated  any  such  increase  of  their  respon- 
sibility as  necessarily  took  place  by  transferring  the  duties  of 
cashier  of  the  State  Bank  to  the  treasurer.  Such  additional 
responsibilities  not  being  within  the  intention  of  either  of  the 
parties  to  the  bond  when  it  was  executed  and  accepted  by  the 
governor,  to  hold  the  securities  responsible  for  the  acts  of  the 
treasurer,  growing  out  of  his  management  of  the  affairs  of 
the  bank,  would  violate  a  well  settled  rule,  that  a  surety  can 
not  be  held  beyond  the  express  terms  of  his  undertaking,  as 
understood  by  the  parties,  when  the  contract  was  entered  into. 

Judgment  affirmed. 

VOL.  1-2  17 


40  YANDALIA. 


Beaird  v.  Foreman. 


[*40]  *  WILLIAM  A.  BEAIRD,  plaintiff  in  error,  v.  MARY 
FOREMAN,  administratrix  of  JOSEPH  FOREMAN, 
deceased,  defendant  in  error. 

Error  to  Sf.  Clair, 

SHERIFF — JUDGMENT  AGAINST — INTEREST. — In  proceedings  against  a 
sheriff,  under  §  30  of  the  practice  act,  by  motion,  for  failing  to  pay  over  mon- 
ey collected  by  him  on  execution,  the  judgment  should  be  for  the  amount 
collected,  and  interest  thereon,  at  the  rate  of  twenty  per  centum  per  annum. 

REMEDIES. — The  remedy  given  by  §  14  of  the  "Act  concerning  Sheriffs 
and  Coroners,"  is  a  distinct  remedy  from  that  given  by  §  30  of  the  prac- 
tice act;  and  it  is  in  the  option  of  the  plaintiff  in  execution  to  resort  to 
whichever  he  pleases. 

THIS  was  a  writ  of  error  from  the  decision  of  the  Hon. 
Theophilus  W.  Smith,  made  at  the  March  term,  1828,  of  the 
St.  Clair  Circuit  Court: 

A.  "W.  SNYDER  and  J.  SEMPLE,  for  the  plaintiff  in  error. 
A.  COWLES,  for  the  defendant  in  error. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court: 
This  case  is  brought  into  this  Court  on  a  writ  of  error  from 
the  St.  Clair  Circuit  Court.  It  appears  from  the  record  that 
the  defendant  in  the  Court  below,  as  sheriff  of  St.  Clair  county, 
had  collected  on  an  execution  in  favor  of  the  plaintiff,  against 
Joseph  Chance,  John  Bird  and  William  Kinney,  defendants  in 
a  replevin  bond,  the  sum  of  $155.28^,  which  he  did  not  pay 
over  on  request,  to  the  said  plaintiff.  A  motion  was  there- 
upon made  against  the  said  sheriff,  on  due  notice  given  under 
the  30th  section  of  the  practice  act  of  1827  (E.  L.  494;  Gale's 
Stat.  535)  for  judgment  against  him  for  said  sum,  and  20  per 
centum  thereon  from  the  time  of  collection  till  paid;  and  a 
judgment  was  accordingly  rendered  at  the  March  term,  1828, 
against  the  said  sheriff,  in  these  words :  "  This  day  came  the 
said  plaintiff  by  her  attorney,  and  satisfactory  proof  having  been 
made  to  the  Court  of  the  service  of  the  notice,  according  to 
Jaw,  and  it  appearing  to  the  Court  that  the  said  defendant  re- 
ceived the  sum  of  $155.28|,  it  being  the  debt  specified  in  said 
execution,  and  that  he  has  been  requested  to  pay  over  the 
same  to  the  plaintiff,  and  hath  failed  so  to  do;  and  the  said  de- 

CITED:  Liability  of  sheriff :  5  Gil.  323.  Jurisdiction  in  equity,  there  be- 
ing remedy  at  law:  17  111.  114.  Power  of  common  law  court  to  nrevent 
abuse  of  process:  17  111.  115.  See  2  Starr  &  C.,  111.  Stat.  2281,  Ch.  125, 
If  23,  notes. 

18 


DECEMBEK  TEEM,  1832.  40 

Beaird  v.  Foreman. 

fendant  declining  in  open  Court  to  make  defense,  it  is  there- 
fore considered  by  the  Court  that  the  said  plaintiff  do  recover 
of  the  said  defendant  the  said  sum  of  $155.28£  for  her  debt, 
and  also  interest,  to  be  computed  thereon  at  the  rate  of  20  per 
centum  per  annum,  from  the  14th  August,  1827,  being  the 
return  day  of  said  execution,  until  paid,  for  her  damages  for 
failing  to  pay  over  the  said  money."  It  is  contended,  in 
the  assignment  of  errors,  by  the  counsel  for  *the  [*41] 
plaintiff  in  error,  that  this  judgment  is  erroneous, 
because  it  awards  20  per  centum  per  annum  interest,  as 
damages,  instead  of  20  per  centum  damages  merely,  up- 
on the  amount  withheld;  this  position  must  be  determined 
by  the  terms  and  intention  of  the  statute  which  gives  the 
remedy.  By  the  act  before  referred  to,  a  summary  rem- 
edy is  provided  against  sheriffs  who  shall  neglect  or  re- 
fuse to  return  an  execution,  or  who  shall  neglect  or  refuse 
to  pay  over  money  collected  by  them  on  execution.  By  giving 
such  sheriff  ten  days'  notice  in  writing,  the  plaintiff  in  the  ex- 
ecution may  have  relief  on  motion  in  the  Circuit  Court,  name- 
ly, an  order  upon  the  officer,  and  process  of  attachment,  if 
necessary,  to  enforce  it,  when  a  return  of  the  execution  merely 
is  sought;  and  when  money  has  been  collected,  and  withheld,  a 
judgment  may  be  rendered,  after  the  proper  steps,  for  the 
amount,  with  20  per  centum  thereon,  from  the  time  of  collec- 
tion till  paid.  There  being  no  question  made  by  the  assign- 
ment of  errors,  as  to  the  regularity  of  such  a  judgment,  the 
decision  in  this  case  must  depend  upon  the  construction  of  the 
words  "  20  per  centum  from  the  time  of  collection  till  paid." 
That  this  means  interest  to  be  computed  at  that  rate,  for  the 
time  the  money  is  withheld,  whatever  that  time  may  be,  the 
Court  has  no  doubt.  The  words  "  from  the  time  of  collection 
till  paid,"  would  otherwise  be  insignificant  and  absurd.  The 
legislature  doubtless  intended  to  take  away  from  the  sheriff  all 
inducement  to  apply  to  his  own  use  money  collected  by  him  ; 
and  a  less  rate  of  interest  than  20  per  centum  in  a  country 
without  usury  laws,  and  where  money  is  not  more  plenty  than 
it  ought  to  be,  might  not  have  removed  the  temptation  which 
sheriffs  sometimes  very  possibV  fall  into,  to  speculate  upon 
the  money  of  others  in  their  hands.  Common  interest,  with 
20  per  centum  damages  upon  the  amount  when  withheld  for  a 
long  time,  might,  and  in  this  State,  often  would,  leave  the 
sheriff  a  gainer  by  his  breach  of  duty;  and  on  the  other  hand, 
it  might  be  no  amends  to  the  unfortunate  plaintiff  who  relied 
upon  the  prompt  collection  of  his  debt.  Another  provision 
of  the  statute,  giving  10  per  centum,  not  as  interest,  but  as 
damages,  on  the  amount  collected,  has  been  referred  to  in  the 

19 


4t  YANDALIA. 


Bowers  v.  Green. 


course  of  the  argument  as  having  a  bearing  upon  this  point. 
It  is  section  14th,  of  an  act  of  1827  (It.  L.  576;  Gale's  Stat. 
055,)  respecting  sheriffs  and  coroners,  and  is  an  independent 
remedy  applicable  to  the  case,  but  which  the  defendant  may 
not  choose  to  pursue,  the  remedy  being  less  efficacious.  The 
two  provisions  are  alternative.  It  is  at  the  option  of  the 
plaintiff  in  the  execution  to  resort  to  whichever  he  pleases. 
When  money  has  been  retained  but  a  short  time,  it  would  af- 
ford a  more  adequate  satisfaction  than  the  provision  of  the 
practice  act,  giving  20  >per  centum  interest  for  the  time  the 
money  was  collected.  In  this  view  of  the  case,  and  the 
Court  *can  see  it  in  no  other,  the  two  provisions  are 
perfectly  consistent  and  proper.  They  both  look  to 
the  security  of  the  party  whose  money  is  improperly  with- 
held, and  to  the  prevention  of  such  conduct  in  officers,  by 
wholesome  damages.  The  judgment  is  therefore  affirmed 
with  costs. 

Judgment  affirmed. 


JOHN  BOWERS,  plaintiff  in  error,  v.  CLARK  GREEN, 
defendant  in.  error. 

Error  to  Jackson. 

WRIT  OF  ERROR. — A  writ  of  error  is  a  writ  of  right,  and  can  not  be  de- 
nied, except  in  capital  cases. 

A  writ  of  error  lies  from  the  Circuit  Court  to  the  Supreme  Court,  al- 
though the  judgment  complained  of  be  less  than  twenty  dollars. 

The  case  of  Clark  v.  Ross,  Breese,  261,  is  overruled. 

JURISDICTION — PENALTIES. — Statute  penalties  are  in  the  nature  of  pun- 
ishments; and  no  ir if eri or  court  or  jurisdiction  can  have  cognizance  of  any 
penalty  recoverable  under  a  penal  statute,  unless  jurisdiction  be  given  to  it 
in  express  terms. 

Justices  of  the  peace  have  no  jurisdiction  in  penal  action?,  except  in  cases 
where  such  jurisdiction  is  expressly  conferred. 

THIS  case  was  tried  before  the  Hon.  Thomas  C.  Browne,  at 
the  October  term,  1832,  of  the  Circuit  Court  of  Jackson 
County. 

S  BREESE  and  A.  COWLES,  for  the  plaintiff  in  error. 

CITED:  Writs  of  error  and  appeal  distinguished:  32  111.  464.  Writ  of 
error  lies  in  what  cases:  76  111.  291;  97  111.  167.  Jurisdiction  of  justice 
of  the  peace:  2  Gilm.  396,  399;  12  111.  29.  Doctrine  of  stare  decisis,  to 
what  extent  applicable:  14  111.  311;  101  111.  214. 

For  a  discufsi on  of  the  doctrine  of  stare  decisis:  See  Re  Hallett's  Estate, 
42  Law  Rep.  (L.  T.  Reps.)  N.  S.  421,  429;  Kent,  Com.  478  et  seq. 

20 


DECEMBER  TERM,  1832.  42 

Bowers  «.  Green. 

D.  tL  BAKER  and  A.  P.  FIELD,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

Green  sued  Bowers  before  a  justice  of  the  peace  to  recover 
the  penalty  of  $5,  inflicted  by  the  14th  section  of  the  "  Act 
regulating  Mills  and  Millers"  passed  9th  February,  1827 
(R.  L.  452;  Gale's  Stat.  464),  for  taking  more  toll  than  is  al- 
lowed by  the  llth  section  of  said  act. 

Green  recovered  before  the  justice,  and  the  cause  was  re- 
moved by  appeal  to  the  Circuit  Court  of  Jackson  county, 
where  the  judgment  of  the  justice  was  affirmed  for  $5.  To 
reverse  this  judgment  ^the  cause  is  brought  into  this  Court  by 
writ  of  error. 

A  preliminary  objection  has  been  raised  whether  a  writ'of 
error  will  lie  in  a  case  where  the  recovery  is  under  $20,  exclu- 
sive of  costs;  and  to  support  this  objection  the  case  of  Clark 
v.  Ross  (Breese,  261),  has  been  cited.  If  the  decision  of  that 
case  was  correctly  made,  then  the  objection  is  well  founded, 
and  this  cause  ought  to  be  dismissed  for  want  of  jurisdiction  in 
this  Court.  The  ;maxim,  Stare  decisis,  is  one  of  great  impor- 
tance in  the  administration  of  justice,  and  ought  not  to  be  de- 
parted from  for  slight  or  trivial  causes  ;  yet  this  rule 
has  never  been  carried  so  far  as  to  preclude  ^Courts  [*43] 
from  investigating  former  decisions,  when  the  ques- 
tion has  not  undergone  repeated  examination,  and  become  well 
settled.  "Wherever  the  construction  of  a  statute  has  been  re- 
peatedly given  in  the  same  way,  or  where  a  construction  has 
been  given  and  acquiesced  in  for  a  number  of  years,  it  would 
be  manifestly  improper  for  a  court  to  disturb  questions  thus 
settled.  But  the  cause  of  Clark  v.  Hoss  is  the  only  case  in 
which  this  Court  have  been  called  on  to  settle  the  right  of 
pai  ties  to  bring  writs  of  error  to  this  Court,  and  that  decision 
has  not,  it  is  understood  by  the  Court,  given  satisfaction  to 
'  the  bar. 

Under  these  circumstances,  I  think  it  the  duty  of  this  Court 
to  revise  that  decision.  That  decision  is  based  upon  the  idea 
that  writs  of  error  are  in  their  nature  appeals,  because  the 
Constitution  only  gives  this  Court  appellate  jurisdiction,  except 
in  certain  cases,  and  the  legislature,  by  limiting  appeals  to  cases 
where  the  judgment,  exclusive  of  costs,  should  amount  to  $20, 
had  used  the  word  "  appeals "  in  its  broadest  constitutional 
sense,  and  thereby  included  writs  of  error.  Were  the  Court 
right  in  giving  this  construction  to  the  word  "appeals?"  At 
common  law  the  only  mode  of  removing  a  cause  from  an  in- 
ferior court  of  record  to  a  superior  court  for  reversal,  was  by 

21 


43  YANDALIA. 


Bowers  v.  Green. 


writ  of  error,  and  this  writ  was  a  writ  of  right,  which  could 
not  be  denied  except  in  capital  cases.  To  obtain  a  writ  of 
error  it  is  necessary  to  apply  to  the  clerk  of  the  Supreme 
Court,  and  then  it  does  not  operate  as  a  stay  of  execution,  un- 
less an  order  is  obtained  from  a  judge  for  that  purpose.  From 
this  statement  it  is  obvious  that  considerable  delay  would  in- 
tervene before  a  writ  of  error  could  be  obtained;  and  in  the 
meantime  an  execution  could  be  issued  on  the  judgment,  and 
a  party,  against  whom  an  erroneous  judgment  had  been  given, 
might  be  put  to  considerable  trouble  and  expense. 

To  remedy  this  evil  it  is  fairly  presumable  that  the  legisla- 
ture gave  the  additional  remedy  by  appeal.  By  taking  an  ap- 
peal, which  is  done  when  the  judgment  is.  rendered,  the  effect 
of  the  judgment  is  entirely  suspended  until  the  appeal  is  de- 
cided. From  this  view  of  the  subject,  I  am  satisfied  that  the 
legislature,  in  authorizing  parties  to  take  "  appeals,"  used  that 
term  as  descriptive  of  the  mode,  and  only  intended  to  give  a 
more  expeditious  and  less  expensive  means  of  taking  a  cause 
from  an  inferior  to  a  superior  court.  An  appeal  ought  there- 
fore to  be  considered  as  a  cumulative  remedy,  and  conse- 
quently any  restriction  upon  the  right  to  use  the  remedy,  can 
not  with  propriety  be  extended  to  other  modes  of  redress  pro- 
vided by  law.  This  construction  is  fortified  by  the  consider- 
ation that,  by  an  act  passed  January  19,  1829,  entitled,  " An 
act  regulating  the  Supreme  and  Circuit  Courts"  (E.  L.  149; 

Gale's  Stat.  169,)  which  act  seems  not  to  have  been 
[*44]     noticed  by  *the  Court  in  the  former  case,  the  remedy 

by  appeal  and  error  are  noticed  as  different  modes  of 
bringing  causes  into  this  Court. 

Another  consideration  is  entitled  to  great  weight  in  arriving 
at  a  correct  result  on  this  question,  and  that  is,  that  much  in- 
justice must  necessarily  result  from  the  decision  in  Clark  v. 
jRoss,  if  adhered  to.  Many  cases  might  be  stated  where  a 
party  would  be  entirely  deprived  of  redress,  where  manifest 
injustice  has  been  done  in  the  Court  below.  I  will  only  state 
one  case  to  illustrate  the  great  impropriety  of  sustaining  the 
decision  of  Clark  v.  Boss.  A  brings  an  action  on  a  note  for 
$1,000,  and  the  Court  below,  by  an  erroneous  decision,  reduces 
the  debt  under  $20;  or  by  such  wrong  decision  a  verdict  is 
given  for  the  defendant.  Now  if  the  case  of  Clark  v.  Ross 
is  to  be  deemed  law,  A,  in  the  supposed  case,  would  be  entirely" 
without  remedy.  Can  it  be  supposed  that  the  legislature  in- 
tended any  such  injustice?  And  ought  this  Court  to  sustain  a 
decision,  unless  compelled  by  express  legislative  enactment, 
which  will  produce  such  results  ?  The  old  and  salutary  rule 
of  the  common  law,  that  a  writ  of  error  is  a  writ  of  right  and 


DECEMBER  TERM,  1832.  44 

Bowers  v.  Green. 

can  uot  be  denied,  except  in  capital  cases,  ought  not  to  be 
abolished  by  implication  and  construction,  and  particularly 
where  it  is  evident  that  the  legislature  could  not  have  contem- 
plated its  repeal.  We  are  therefore  clearly  of  opinion  that  the 
case  of  Clark  v.  Ross  ought  to  be  overruled. 

Having  disposed  of  this  preliminary  question,  I  come  to  the 
assignment  of  errors  in  this  cause.  The  first  assignment  is 
that  a  justice  of  the  peace  had  no  jurisdiction  of  the  subject- 
matter  of  this  suit.  The  statute  giving  the  penalty  author- 
izes the  party  injured  to  sue  for  the  penalty  in  any  court  hav- 
ing cognizance  thereof.  The  question  here  arises,  have  jus- 
tices of  the  peace  any  jurisdiction  over  penal  actions.  By  a 
careful  examination  of  the  several  cases  enumerated  in  the  gen- 
eral act  giving  justices  of  the  peace  jurisdiction,  I  am  satisfied 
the  legislature  only  intended — and  such  is  the  obvious  import 
of  the  act — to  confine  their  jurisdiction  to  actions  arising  on 
contract.  An  action  of  debt  for  a  penalty  inflicted  by  statute 
can  in  no  sense  be  considered  as  an  express  or  even  an  implied 
contract.  Statute  penalties  are  in  the  nature  of  punishments, 
and  persons  who  incur  their  liabilities  are  considered  as  tort 
feasors,  (Coles  v.  Madison  Co.,  Breese,  115.) 

In  relation  to  what  courts  have  cognizance  of  penal  actions, 
the  following  rule  is  laid  down  in  Espinasse  on  Penal  Statutes, 
to  wit:  "  With  respect,  however,  to  statutes  giving  jurisdic- 
tion, a  difference  must  be  observed  as  to  the  superior  and  in- 
ferior courts.  The  courts  aJjove  may  have  jurisdiction  by 
implication,  as  in  the  cases  of  penal  statutes  mentioned  before, 
such  as  Rex  v.  Mallard,  ante  fol.  9,  prohibiting  any  matter  of 
public  concern  under  a  penalty,  but  without  appropri- 
ating it,  and  which  is  a  debt  *due  to  the  crown  and  [*45] 
recoverable  in  the  Court  of  Exchequer.  That  might  be 
sued  for  in  the  courts  above,  though  they  are  not  named;  but 
no  inferior  court  or  jurisdiction  can  have  cognizance  of  any  < 
penalty  recoverable  under  a  penal  statute  by  implication. 
They  must  be  expressly  mentioned  in  the  statutes  themselves, 
and  cognizance  given  to  them  in  express  terms."  Jurisdic- 
tion not  having  been  given  expressly  to  justices  of  the  peace, 
we  are  of  opinion  that  the  justice  in  this  case  had  no  jurisdic- 
tion, and  the  judgment  of  the  Circuit  Court,  for  this  reason, 
must  be  reversed  with  costs.  Otl  e  •  errors  have  been  assigned 
and  argued,  but  the  Court  not  be  'ng  entirely  satisfied  relative 
to  them,  gave  no  opinion. 

Judgment  reversed. 

23 


45  YANDALIA. 


Clemson  and  Waters  v.  State  Bank  of  Illinois. 


ELI  B.  CLEMSON  and  ISRAEL  WATERS,  appellants,  v. 
THE  PRESIDENT  AND  DIRECTORS  OF  THE  STATE 
BANK  OF  ILLINOIS,  appellees. 

Appeal  from  St.  Clair. 

ERROR. — It  would  be  clearly  unjust  to  permit  a  party  to  assign  his  own 
mistakes  as  error.* 

PRACTICE — APPEARANCE. — Where  C.  and  W.  are  joined  as  defendants  in 
a  suit,  and  process  served  only  on  C. ,  and  the  defendants'  attorney,  in  a  de- 
murrer to  the  declaration,  used  the  language  "  defendants  come  by  their 
attorney,  and  defend,"  etc.  but  in  the  subsequent  pleadings  used  only  the 
name  of  C.,  held  that  he  did  not  thereby  enter  W.'s  appearance. 

JUDGMENT.'— It  is  not  error  for  the  Court  to  give  final  judgment  against 
the  defendant,  upon  sustaining  the  plaintiffs'  demurrer  to  a  bad  plea. 

DISCRETION. — The  granting  or  refusing  an  application  to  withdraw  a  plea 
and  plead  de  noro,  rests  in  the  discretion  of  the  Court. 

WRIT  OP  INQUIRY. — A  writ  of  inquiry  is  never  necessary  where  the  dam- 
ages can  be  ascertained  by  computation. 

J.  SEMPLE,  for  the  appellants. 

A.  COWLES  and  T.  FORD,  for  the  appellees. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court :  • 
This  is  an  action  of  covenant  brought  by  the  President  and 
Directors  of  the  State  Bank  of  Illinois,  on  a  sealed  note, 
against  Clemson  and  one  Waters.  Several  errors  have  been 
assigned,  which  will  be  noticed  in  their  order.  The  first  error 
assigned  is,  that  judgment  was  given  against  Clemson  alone, 
when  it  ought  to  have  been  given  against  both  defendants. 
It  appears,  by  the  return  on  the  writ,  that  Clemson  only  was 
served  with  process.  The  defendants'  attorney,  in  a  demurrer 
to  the  declaration,  used  the  words  "  defendants  come  by  their 

CITED  :  When  error  can  not  be  assigned :  70  111 .  575.  Recital  as  to  appear- 
ance of  defendants:  48  111.  118.  Mode  of  pleading:  2  Scam.  186.  Assess- 
ment of  damages:  3  Scam.  35;  16  111.  480.  When  not  error  to  enter  final 
judgment:  3  Scam.  53. 

*A  party  can  not  assign  his  own  mistakes  for  error.  Tor  applications  of 
this  principle,  see  Gillilan  v.  Nixon,  26  111.  50;  Waterbury  v.  Darien,  9  Conn. 
252  ;  Jarett  r.  Tomlinson,  3  Watte  &  S.  114;  Roberts  v.  Warren,  3Wis. 
736  ;  Walther  T.  Warner,  26  Mo.  143;  Datisen  v.  Johnson,  13  N.  J.  L.  264; 
Young  r.  Han-iron.  17  Ga.  30;  Powell  v.  Ross,  4  Cal.  197;  Planters,  etc.,  Bank 
t.  Willis,  5  Ala.  770;  Limestone  Co.  Court  v.  French,  3  Stew.  &  P.  263. 

When  a  plaintiff  takes  a  voluntary  nonsuit  he  can  not  assign  that  for 
error.  Brown  v.  Mallidy.  19  111.  290;  Sone  v.  Palmer,  28  Mo.  539;  Jones 
«.  Mobile,  etc.,  R.  R.  Co.,  64  Ga.  446. 


DECEMBER  TEEM,  1832.  45 

Clemson  and  Waters  v.  State  Bank  of  Illinois. 

attorney,  and  defend,"  etc.,  but  in  the  subsequent  plead- 
ings the  defendants'  attorney  used  only  *the  name  of  [*46] 
Clemson.  Was  here  such  an  appearance  on  the  part 
of  Waters  as  compelled  the  plaintiffs  to  consider  him  in  court  ? 
We  think  not.  As  Waters  was  not  served,  it  evidently  was  a 
mistake  on  the  part  of  the  attorney,  in  using  a  plural  noun  and 
verb  instead  of  a  singular  one,  and  a  mistake  which  the 
Court  would  have  permitted  him  to  amend.  The  defendants' 
attorney  did  not  apply  to  the  Court  to  correct  the  mistake, 
but  corrected  it  himself  in  the  subsequent  pleadings.  It  would 
be  clearly  unjust  to  permit  a  party  to  assign  his  own  mistakes 
as  errors  to  reverse  a  judgment. 

The  second  error  assigned  is,  "  that  the  Court  below  gave 
judgment  on  the  plaintiffs'  demurrer  in  chief,  when  the  judg- 
ment should  have  been  respondeas  ouster"  When  a  plea  is 
tiled  the  plaintiff  replies  either  by  taking  issue  or  setting  up 
new  matter  in  avoidance,  or  demurs.  If  the  plaintiff  demurs 
to  defendant's  plea,  the  law  arising  on  the  case  is  referred  to 
the  Court,  and  if  the  plea  furnishes  no  legal  defense  to  the 
action,  the  judgment  is  always  either  interlocutory  or  final, 
according  to  the  nature  of  the  action.  The  only  mode  given 
to  the  defendant  to  contest  the  facts  set  out  in  the  declaration, 
is  by  applying  to  the  Court  for  leave  to  withdraw  the  bad 
plea,  and  plead  de  novo,  which  application  rests  in  the  discre- 
tion of  the  Court  to  grant  or  refuse.  No  motion  having  been 
made  for  eave  to  withdraw  the  plea  and  plead  again,  the  de- 
fendant elected  to  abide  by  the  goodness  of  his  plea,  and  he 
can  not  now  assign  for  error  that  the  Court  ought  to  have 
given  judgment  of  respondeas  ouster. 

The  third  error  assigned  is,  "  that  the  Circuit  Court  ordered 
the  clerk  to  assess  the  damages,  when  by  the  law  of  the  land 
the  said  Court  should  have  awarded  a  writ  of  inquiry."  On 
the  argument  it  was  urged  that  the  copy  of  the  note  appended 
to  the  declaration  contains  no  date,  and  consequently  the  clerk 
had  no  time  from  which  to  calculate  interest.  By  examining 
the  declaration,  however,  it  is  there  averred  that  the  note  was 
made  and  delivered  on  the  23d  day  of  June,  1825,  and  by  the 
decision  of  the  case  of  Sims  v.  Iluc/sby,  (Breese,  27,)  the  copy 
of  the  note  is  not  a  part  of  the  declaration,  consequently  this 
furnishes  no  objection  to  the  clerk's  assessing  the  damages.  If 
the  clerk  made  any  mistake  in  assessing  the  damages,  the  prop- 
er remedy  was  by  applying  to  the  Court  below  to  correct  it. 
It  was  also  urged  on  the  argument,  that  by  the  statute  the 
clerk  could  only  assess  damages  where  a  default  for  not  plead- 
ing had  been  entered.  In  the  case  of  Rust  v.  tfrothingham 
and  Fort)  (Breese,  258,)  this  Court  decided  that  a  "writ  of  in- 

25 


46  VANDALIA. 


Bailey  v.  Campbell. 


quiry  is  never  necessary  where  the  damages  can  be  ascertained 
by  computation."  The  third  assignment  of  error  therefore 
furnishes  no  ground  for  reversing  the  judgment.  The  judg- 
ment is  affirmed  with  costs. 

Judgment  affirmed. 


[*47]  *LEWIS  BAILEY,  administrator  of  STEPHEN 
BENEDICT,  deceased,  plaintiffm  error,  v.  JAMES 
B.  CAMPBELL,  defendant  in  error. 

Error  to  La  Salle. 

PRACTICE — EXCEPTION  TO  INSTRUCTIONS. — It  is  not  in  the  power  of  a 
party  to  except  to  the  opinion  of  the  Court  refusing  instructions,  unless  he 
move  them  himself. 

ERROR. — A  party  can  not  assign  for  error  that  which  makes  in  his  own 
favor,  except  under  peculiar  circumstances. 

L.  BIGELOW,  for  the  plaintiff  in  error. 
T.  FORD,  for  the  defendant  in  error. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court : 
This  is  an  appeal  brought  from  the  Circuit  Court  of  La 
Salle  county.  The  following  points  are  presented  to  this 
Court  by  the  bill  of  exceptions.  The  defendant  in  the  Court 
below  moved  for  several  instructions,  which  it  is  not  necessary 
here  to  recite.  They  were  all  refused  but  one,  to  which  no 
exception  is  taken  in  the  argument.  The  jury  on  the  trial  in 
the  Circuit  Court  found  a  verdict  for  the  defendant,  and  the 
plaintiff  brings  the  record  into  this  Court,  such  as  it  is.  By 
the  refusal  of  the  Court  to  grant  instructions  prayed  for  by 
the  defendant,  it  would  be  contrary  to  all  practice,  in  common 
cases,  for  the  plaintiff  to  be  prejudiced.  It  is  not  in  his  power 
to  except  to  the  opinion  of  the  Court  refusing  instructions,  un- 
less he  moves  them  himself  ;  and  it  is  a  well  settled  principle, 
that  a  party  can  not  assign  for  error  that  which  makes  in  his 
own  favor,  unless  it  be  under  peculiar  circumstances.  This 
Court  can  see  nothing  in  this  record  which  should  take  it  out 
of  the  common  rule.  The  judgment  is  therefore  affirmed 
with  costs. 

Judgment  affirmed. 

CITED:  Costs,  3  Scam.  63;    Error,  3  Gilm.  81;  Recognizance,  18  111.  406. 

26 


DECEMBER  TERM,  1832.  47 

Humphreys  v.  Collier  and  Powell. 


EDWARD  HUMPHREYS,  appellant,  v.  GEORGE  COLLIER 
and  PETER  POWELL,  appellees. 

Appeal  from  Randolph. 

PLEADING — PROOF. — After  issue  taken  on  the  facts  contained  in  the  dec- 
laration, it  is  sufficient  for  the  plaintiff,  by  proof,  to  sustain  the  material 
averments  contained  therein. 

ASSIGNMENT  OP  NEGOTIABLE  INSTRUMENT — LIABILITY  OP  ASSIGNOR. — 
The  assignor  of  a  negotiable  instrument,  assigned  after  it  became  due,  un- 
der tbe  statute  relative  to  promissory  notes,  etc.,  is  liable  to  his  assignee, 
where  the  maker  of  the  instrument  is  insolvent  at  the  time  of  the 
assignment,  and  so  *coutinues  up  to  the  time  of  action  brought,  al-  [*48J 
though  no  suit  has  been  prosecuted  against  the  maker. 

INSTRUCTIONS — ERROR. — Instructions  to  the  jury  should  be  founded  up- 
on the  evidence  in  the  case;  and  where  there  is  no  evidence  upon  which 
to  base  the  instructions,  it  is  error  to  give  them. 

THE  appellees  instituted  a  suit  in  the  Randolph  Circuit 
Court  against  the  appellant,  as  assignee  of  the  following  note : 

"$181.  Five  months  after  date  I  promise  to  pay  Edward 
Humphreys,  or  order,  the  sum  of  one  hundred  and  eighty-one 
dollars  in  cash,  for  value  received,  this  third  day  of  April, 
1822. 

"  Attest,  SAML.  SMITH.  ELIAS  BAECROFT.  [L.  S.]  " 

On  this  note  were  the  following  indorsements : 

"  Received,  4th  June,  1823,  of  William  Rector,  eighty  dol- 
lars in  part  of  the  within  order. 
"$80.  J.  B.  THOMAS." 

"Pay  the  within  balance  of  one  hundred  and  one  dollars 
to  Messrs.  Collier  and  Powell.  ED.  HUMPHREYS." 

The  first  count  in  the  declaration  states  the  making  of  the 
note  by  Barcroft,  and  the  assignment  to  the  appellees,  and 
then  avers  that,  at  the  time  of  the  assignment,  Barcroft  "had 
not  the  means  of  paying  the  balance  due  on  said  note  by  the 
ordinary  process  of  law ;  nor  could  he,  said  Barcroft,  be  com- 
pelled, by  process  of  law,  to  pay  and  satisfy  the  same ;  nor 
would  a  suit  against  Barcroft,  to  recover  said  balance,  have 
been  availing  to  the  said  plaintiffs  by  reason  of  a  want  of 
property  by  said  Barcroft,  liable  to  execution  to  satisfy  the 
same." 

The  declaration  also  contained  a  count  for  goods,  wares, 
and  merchandise  sold  and  delivered,  and  the  usual  money 

CITED:  Irrelevant  instructions  are  erroneous:  18  111.  268.  Refusal  to 
giv-p  in  structions,  when  no  error:  18  111.  454. 

Negotiable  paper — Liability  of  assignor  to  assignee.  See  2  Starr  &  C. 
111.  Stat.  1658,  Ch.  98,  If  7,  notes. 

27 


48  YANDALIA. 


Humphreys  v.  Collier  and  Powell. 


counts.  The  defendant  hi  the  court  below,  the  appellant' 
pleaded  the  general  issue  to  the  whole  declaration,  and  pay- 
ment to  all  but  the  first  count.  The  cause  was  tried  at  the 
September  term,  1832,  before  the  Hon.  Theophilus  W.  Smith 
and  a  jury,  and  a  verdict  rendered  for  the  appellees  for  $133. 
Judgment  was  entered  upon  this  verdict,  and  an  appeal  taken 
to  this  court. 

A  bill  of  exceptions  was  taken  in  the  Court  below,  which  is 
as  follows: 

"Be  it  remembered  that  at  the  September  term  of  this 
Court,  on  the  trial  of  the  issue  joined  in  this  cause,  after  the 
hearing  of  the  testimony  on  the  trial  of  the  said  issue,  the 
plaintiffs  by  their  counsel  moved  the  Court  to  instruct  the 
jury  as  follows : 

1st.  In  a  suit  by  the  assignee  of  a  bond  against  the  assignor, 
upon  a  written  assignment,  parol  evidence  is  not  admissible  to 
show  that  the  assignee  took  it  without  recourse  on  the  assignor, 
this  being  no  part  of  the  written  contract,  when  the  writing 

of  assignment  shows  no  such  thing. 

[*49]         *2d.  That  the  written  assignment  on  a  note  must  be 
resorted  to  to  show  what  the  contract  is  between  the 
assignee  and  assignor,  as  to  future  liability. 

3d.  Where  a  contract  is  in  writing,  conversations  previous, 
and  leading  to  it,  can  not  be  given  in  evidence. 

4th.  That  the  law  of  Missouri  in  regard  to  the  liability  of 
the  assignor  in  this  case,  is  to  govern  the  case. 

5th.  That  by  the  laws  of  Missouri,  a  suit  need  not  be  insti- 
tuted by  the  assignee,  against  the  maker,  if  such  suit  would 
be  unavailing ;  and  that  the  insolvency  of  the  maker  at  the 
time  of  the  assignment,  and  continued,  dispenses  with  dili- 
gence. 

6th.  That  by  those  laws  no  not:ce  to  assignor  is  necessary. 

7th.  That  when  a  note  is  indorsed,  it  is  like  a  bill  of  ex- 
change, the  assignor  being  the  drawer,  and  the  maker  of 
the  note  the  drawee  ;  and  if  it  is  shown  that  the  drawee  had 
no  effects  of  the  drawer  in  his  hands,  notice  is  not  necessary. 

8th.  That  by  the  laws  of  Missouri  the  insolvency  of  the 
maker  of  a  note  gives  a  recourse,  without  notice,  upon  the  as- 
signor. 

9th.  That  insolvency  may  be  proved  by  common  report. 

10th.  That  a  note  of  a  third  person,  taken  in  payment  for 
goods  sold  and  delivered  which  turns  out  to  be  worth  nothing, 
is  no  payment,  and  the  party  can  resort  to  his  contract  for  goods 
sold. 

llth.  That  the  salary  of  an  officer  cannot  be  levied  on  by  ex- 
ecution. 


DECEMBEE  TEEM,  1832.  49 

Humphreys  v.  Collier  and  Powell. 

12th.  That  in  determining  cases  of  insolvency,  the  law  re- 
gards only  the  ability  of  a  person  to  pay  by  coercion  or  com- 
pulsion of  law,  and  not  voluntary  or  friendly  payment. 

13th.  That  in  a  case  of  notorious  insolvency  in  the  maker 
of  a  note,  a  resort  can  be  had  immediately  by  the  assignee 
on  the  assignor,  who  has  not  protected  himself  by  his  assign- 
ment. 

Which  instructions,  except  the  first  above  specified,  the 
Court  gave  as  asked — and  also  instructed  the  jury,  that  if  said 
Barcroft,  at  the  time  of  the  assignment  of  the  said  note  to  the 
plaintiffs,  was  insolvent,  such  insolvency  excused  them  from 
demanding  payment  thereof  from  the  maker,  prior  to  their 
bringing  suit  on  such  assignment  or  indorsement  against  said 
defendant. 

The  defendant,  by  his  counsel,  before  the  Court  gave  the 
foregoing  instructions,  objected  to  the  Court's  noticing  1he 
laws  of  Missouri,  because  they  were  not  proved  in  any  other 
way  before  the  Court  than  by  the  judge's  having  in  his  hand 
the  printed  report  of  this  case — when  in  the  Supreme  Court — 
as  contained  in  Sidney  Breese's  Reports,  which  objection  the 
Court  overru'ed. 

The  said  defendant  also,  on  said  tria1,  moved  the  Court  to 
instruct  the  jury:     1st.  That  if  they  aie  of  opinion  that  the 
plaintiffs  received  the  note  of  Barcroft  in   payment 
of  the  goods  purchased  *at  the  time  it  was  indorsed  by     [*50] 
the  defendant,  at  their  own  risk,  they  have   no  claim 
on  the  defendant,  either  as  purchaser  of  their  goods  or  as  in- 
dorser  of  the  note. 

2d.  That  should  they  be  of  opinion  that  the  note  of  said 
Barcroft  was  not  received  in  full  payment  of  the  goods  pur- 
chased by  the  defendant,  of  the  plaintiffs,  at  the  time  it  was 
indorsed,  at  their  own  risk,  that  then,  before  the  plaintiffs  can 
recover  in  this  case  against  the  defendant  as  an  indorser  of  the 
note,  the  "plaintiffs  must  prove  a  demand  of  payment  from  Bar- 
croft, and  notice  to  the  defendant,  or,  at  least,  that  they  de- 
manded payment  of  Barcroft. 

The  first  of  which  instructions,  asked  by  the  defendant,  the 
Court  gave  as  asked,  but  refused  to  give  the  second,  instruct- 
ing the  jury,  that  in  cases  of  insolvency  of  the  maker  of  the 
note  after  indorsement  and  before  suit  brought,  neither  de- 
mand of  payment  nor  notice  of  refusal  to  defendant,  was 
necessary ;  to  all  which  several  opinions  of  the  Court,  the 
said  defendant  by  his  counsel  excepts,  and  prays  that  this 
his  bill  of  exceptions  may  be  signed  and  sealed  by  the  judge, 
and  made  part  of  the  record  in  this  case,  which  is  done  accord- 
ingly. THKO'S  W.  SMITH.  [L.  s.]" 

29 


50  VANDALIA. 


Humphreys  v.  Collier  and  Powell. 


The  appellant  assigned  for  error — 

1.  The  said  Collier  and  Powell,  in  the  first  count  of  the  dec- 
laration aforesaid,  do  not  set  forth  any  cause  of  action  against 
the  said  Edward,  because  they  do  not  allege  a  presentation  for, 
or  a  demand  of  payment  of,  the  said  writing  obligatory  in  said 
first  count  described,  of  and  from  the  said  Elias  Barcroft,  the 
maker  thereof. 

2.  The  Court  erred  in  instructing  the  jury  that  if  the  said 
Barcroft,  at  the  time  of  assigning  said  writing   obligatory  to 
the  plaintiffs,  was  insolvent,  such  insolvency  excused  them  from 
demanding  payment  thereof  from  the  maker,  prior  to  their 
bringing  suit  on  such  assignment  or  indorsement,  against  said 
defendant. 

3.  The  Court  erred  in  instructing  the  jury,  that  "  the  laws 
of  Missouri  in  regard  to  the  liability  of  the  assignor  in  this  case 
are  to  govern  the  case,"  when  there  was  no  proof  before  the 
Court  that  the  contract  sued  on  between  said  plaintiffs  and  de- 
fendant was  made  in  the  State  of  Missouri. 

4.  The  Court  erred  in  noticing  the  laws  of  Missouri  when 
those  laws  were  not  proved  by  any  competent  evidence. 

5.  The  Court  erred  in  instructing  the  jury  "  that  a  note 
of  a  third   person,  taken  in   payment  for  goods  sold  and   de- 
livered, which  turns  out  to  be  worth  nothing,  is  no  payment, 
and  the  party  can  resort  to  his  contract  for  goods  sold,"  etc. 

6.  The  Court  erred  in  instructing  the  jury  "  that  in  a  case 

of  notorious  insolvency  in  the  maker  of  a  note,  a  re- 
[*51]  sort  can  be  had  *immediately  by  the  assignee  on  the 

assignor,  who  has  not  protected  himself  by  his  assign- 
ment. 

7.  The  Court  also  erred  in  refusing  to  give  to  the  jury  the 
second  instruction  asked  for  by  the  defendant,  and  in  instruct- 
ing the  jury  that  "  in  case  of  the  insolvency  of  the  maker  of 
the  note,  after   indorsement,  and   before   the   suit  brought, 
neither  demand  of  payment,  nor  notice  of  refusal  to  defendant, 
was  necessary. 

8.  The  Court  erred  in  instructing  the  jury,  that  by  the 
laws  of  Missouri  "the  insolvency  of  the  maker  of  a  note,  at 
the  time  of  the  assignment  and  continued,  dispenses  with  dili- 
gence." 

D.  J.  BAKER,  for  the  appellant. 
S.  BEEESE,  for  the  appellees. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  brought  by  the  appellees  against  the  ap- 


DECEMBEE  TEEM,  1832.  51 

Humphreys  v.  Collier  and  Powell. 

pellant,  in  the  Circuit  Court  of  Eandolph,  as  the  assignor  of 
a  promissory  note  of  hand,  under  seal,  to  recover  the  balance 
due  at  the  time  of  the  assignment,  and  still  remaining  unpaid. 
The  declaration  alleges  the  making  of  the  note,  and  the  as- 
signment and  delivery  to  Collier  and  Powell;  and  then  spe- 
cially avers,  that  at  the  time  of  such  assignment  there  existed  a 
total  inability  of  the  maker  to  pay  the  same,  and  that  payment 
could  not  be  coerced  by  the  ordinary  course  of  law  ;  that  a 
suit  would  have  been  unavailing  to  compel  the  maker  to  pay 
the  same,  by  reason  of  his  total  want  of  property  to  be  reached 
by  an  execution  upon  any  judgment  which  might  have  been 
obtained  by  suit  against  him  on  said  note  ;  that  the  maker  has 
not  paid  or  caused  the  said  balance  to  be  paid  to  them,  or  any 
part  thereof,  but  has  wholly  refused ;  of  all  which  the  appel- 
lant had  notice.  To  this  count  was  added  a  count  for  goods, 
wares  and  merchandise  sold  and  delivered,  and  the  usual  money 
counts.  The  defendant  in  the  Court  below  pleaded  the  gen- 
eral issue,  and  payment  to  the  second  and  third  counts ;  to 
which  plea  of  payment  there  were  a  replication  and  issue. 

During  the  progress  of  the  trial,  various  instructions  were 
prayed  for  by  both  the  plaintiffs'  and  defendant's  counsel  in 
the  Court  below.  It  is  not  esteemed  important  for  the  consid- 
eration of  the  present  case  to  examine  the  correctness  of  but 
two,  which  are  contained  in  the  bill  of  exceptions.  The  first 
was  prayed  for  by  the  defendant's  counsel,  and  is  as  follows  : 
"  That  should  the  jury  be  of  opinion  that  the  note  of  said 
Barcroft  was  not  received  in  full  payment  of  the  goods  pur- 
chased by  the  defendant,  of  the  plaintiffs,  at  the  time  it  was 
indorsed,  at  their  own  risk,  that  then  before  the  plaintiffs  can 
recover  in  this  case  against  the  defendant,  as  indorser  of  the 
note,  the  plaintiffs  must  prove  a  demand  of  payment  from 
Barcroft,  and  notice  to  the  defendant,  or  at  least 
*that  they  demanded  payment  of  Barcroft."  The  re-  [*52] 
f  usal  of  the  Circuit  Court  thus  to  instruct  the  jury  is  as- 
signed for  error  ;  and  we  are  now  to  consider  whether  it  is  in 
fact  so.  An  obvious  answer  is  to  be  given  tD  this  objection  ; 
no  rule  is  certainly  better  settled  than  that  which  holds  a  party 
to  the  proof  only  of  the  material  averments  in  his  declara- 
tion. We  shall  look  in  vain  into  the  first  count  for  an  aver- 
ment that  a  demand  of  payment  was  made,  and  notice  of  non- 
payment given  to  Humphreys.  The  plaintiffs  have  based  their 
right  to  recover,  not  on  the  ordinary  liabilities  of  an  assignor 
of  a  note  or  sealed  instrument  of  writing,  for  the  payment  of 
money,  but  on  the  avowed  insolvency  of  the  maker  at  the 
time  of  the  assignment  of  the  note  in  question,  and  have 
framed  the  count  on  the  note^  upon  such  a  supposed  state  of 

31 


52  VANDALIA. 


Humphreys  v.  Collier  and  Powell. 


facts.  It  is  therefore  most  manifest  that  to  have  required 
proof  of  demand  and  notice  woiild  have  been  to  have  re- 
quired proof  of  matters  not  in  issue,  but  entirely  foreign  to 
the  issue.  The  defendant  having  taken  issue  on  the  facts  con- 
tained in  the  declaration,  it  was  sufficient  for  the  plaintiffs,  by 
proof,  to  sustain  the  material  averments  therein  contained  ; 
and  they  could  not  be  called  on  to  prove  more.  If  demand 
and  notice  were  necessary  and  material  averments,  the  defend- 
ant should  have  demurred  to  the  declaration,  and  not  pleaded 
in  chief.  But  as  the  declaration  is  evidently  framed  with 
a  view  to  that  portion  of  our  statute  relating  to  promissory 
notes,  bonds,  due-bills,  and  other  instruments  in  writing, 
making  them  assignable,  which  requires  due  diligence  to  be 
used  to  first  collect  the  amount  from  the  maker  by  suit,  except 
where  the  institution  of  such  suit  would  have  been  unavailing, 
it  may  become  necessary  and  proper  to  consider  whether,  under 
the  second  section  of  that  act,  in  relation  to  a  case  of  notorious 
insolvency,  when  the  note  becomes  due,  demand  of  payment 
from  the  maker,  and  notice  of  non-payment  to  the  assignor, 
are  necessary  to  be  averred  and  proven  before  a  party  shall  be 
entitled  to  recover. 

From  a  consideration  of  the  causes  which  gave  rise  to  the 
laws  which  exist  in,  and  govern,  States  and  countries  greatly 
commercial,  it  will  be  evident  that  many  of  the  principles  ap- 
plicable to  a  commercial  people,  in  the  negotiation  of  assign- 
able, indorsable,  and  transferable  paper  securities,  and  instru- 
ments for  the  payment  of  money,  would  but  illy  suit  the  con- 
dition of  a  people  so  purely  agricultural  as  we  are  ;  and  hence 
the  impolicy  of  adopting  the  principles  and  rules  of  decision 
which  have  been  made  in  States  and  countries  that  have  adopted 
the  law  of  merchants  in  relation  to  negotiable  paper.  It  must 
be  recollected  that  the  British  decisions  are  not  only  different, 
for  the  reasons  assigned,  but  the  statutes  of  Anne,  under 
which  most  of  them  have  been  made,  differ  in  material  points 
from  ours.  We  are  not  only,  then,  restricted  from 
[*53]  adopting  their  rules  where  inapplicable,  but  we  *  are  pro- 
hibited by  the  express  terms  of  our  own  laws,  which  have 
been  framed  and  adopted,  doubtless,  as  being  more  congenial 
to  our  modes  of  transacting  such  negotiations,  and  as  better 
calculated  to  insure  equitable  and  legal  liabilities  between 
parties.  The  construction  of  that  portion  of  our  statute,  it 
would  seem,  is  of  easy  interpretation.  If  the  suit  which  it 
requires  to  be  prosecuted,  as  the  evidence  of  the  means  of 
diligence,  would  have  been  unavailing,  then  it  is  declared — 
the  assignee  may  maintain  an  action  against  the  assignor  as  if 
due  diligence,  by  suing,  had  been  used. 

82 


DECEMBEE  TEEM,  1832.  53 

Humphreys  v.  Collier  and  Powell. 

,  in  what  case,  more  than  in  the  case  of  an  absolute  and 
entire  insolvency  of  the  maker  of  a  note  or  bond,  can  it  be 
imagined  that  a  suit  would  be  unavailing  ?  It  seems  difficult 
to  conceive  a  case  more  apposite  or  more  comprehensive  in  its 
nature  ;  indeed,  it  might  be  eaid  to  have  been  the  very  case  to 
which  the  exception  of  the  statute  was  intended  to  apply ;  and 
as  the  statute  has  also  made  the  same  exception  in  cases  where 
the  maker  has  absconded  or  left  the  State,  it  can  not,  perhaps, 
be  so  readily  perceived  what  other  state  of  facts  could  well  ex- 
ist to  meet  the  application  of  a  further  exception.  Satisfied 
that  such  were  the  objects  of  its  framers,  we  are  bound  to  con- 
sider that,  in  cases  of  notorious  insolvency  of  the  maker  of  an 
assignable  instrument,  contemplated  by  our  statute,  after  it 
becomes  due,  and  so  continuing  up  to  the  time  of  action  brought, 
the  assignor  must  be  liable  to  his  assignee. 

On  the  second  point  of  instructions  which  were  asked  by 
the  plaintiffs  in  relation  to  the  laws  of  Missouri,  as  applicable 
to  the  case  before  the  Court,  it  is  proper  to  remark,  that  it  no- 
where appears  in  the  declaration,  nor  indeed  in  any  part  of  the 
record,  that  the  note  or  assignment  was  made  in  Missouri ; 
nothing  appears  in  the  bill  of  exceptions  to  show  that  there  was 
any  evidence  that  the  assignment  or  transfer  of  the  note  took 
place  there  ;  and  yet  such  must  doubtless  have  been  shown  by 
evidence,  for  on  that  ground  alone  could  it  be  imagined  that 
the  Circuit  Court  would  have  instructed  the  jury  that  the  laws 
of  Missouri,  as  to  the  contract,  were  to  govern  them.  If  this 
had  appeared,  and  we  could  see  with  judicial  eyes  that  the  con- 
tract was  made  there,  then  doubtless  the  instructions  as  to  those 
laws  would  have  been  correct.  In  the  absence,  however,  of 
that  fact,  and  much  as  it  is  to  be  regretted  that  omissions  of 
this  character,  (if  it  be  one  in  the  present  case,)  which  might 
have  been  remedied  in  a  moment,  should  become  available  here, 
to  destroy  the  fruits  of  a  recovery,  still,  as  there  is  no  discre- 
tion left  under  such  circumstances,  the  judgment  of  the  Court 
below  is  reversed,  arid  the  cause  remanded  to  the  Circuit  Court 
for  further  proceedings,  not  inconsistent  with  this  opinion. 

Judgment  reversed. 

VOL.  1—3  83 


54  VANDALIA. 


Bates  t>.  Wheeler. 


[*o4]     THOMAS    Y.  BATES,    appellant,   v.    ERASTUS 
WHEELER,  appellee. 

Appeal  from  Madison. 

SPECIFIC  PERFORMANCE. — A  bill  in  equity  to  enforce  the  specific  per- 
formance of  a  contract  must  show  a  complete  performance  of  all  the  stipula- 
tions on  the  part  of  the  complainant,  to  entitle  him  to  a  decree.* 

He  who  seeks  equity,  must  do  equity. 

J.  SEMPLE  and  S.  BREESE,  for  the  appellant. 
A.  COWLES,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
The  appellant  filed  his  bill  in  equity  in  the  Court  below,  to 
compel  a  specific  performance  of  a  contract  in  writing,  entered 
into  between  him  and  the  defendant,  by  which  the  defendant 
covenanted  to  convey  a  good  title  to  certain  real  estate  lying  in 
the  military  tract  of  this  State.  The  complainant,  in  his  bill, 
alleges,  "that  he  li&spaid  the  whole  consideration  of  said  land, 
and  that  he  has  frequently  demanded  a  deed  of  the  defendant." 
The  case  does  not  require  a  specific  enumeration  of  its  progress 
and  determination  in  the  Court  below ;  it  is  sufficient  to  say,  for 
the  purpose  of  its  present  consideration,  that  it  was  put  at  issue 
by  a  replication  to  the  defendant's  answer,  testimony  taken,  and 
finally  heard,  on  bill,  answer,  replication,  exhibits,  and  evidence 
of  several  witnesses,  whose  testimony  is  embodied  in  the  form 
of  depositions.  At  the  hearing,  the  Circuit  Court  dismissed 
the  bill,  and  adjudged  that  the  complainant  should  pay  costs 
to  the  defendant.  From  this  judgment  the  complainant  ap- 
pealed, and  we  are  now  to  determine  whether  the  Circuit 
Court  erred  in  the  rendition  of  its  decree. 

The  inquiry  on  the  merits  and  equity  of  the  complainant's 
case  demands  an  examination  into  the  allegation  of  his  bill — 
whether  the  consideration  money  has  been  paid,  or  the  terms 
and  condition  upon  which  the  defendant  had  engaged  to  make 
the  conveyance  have  been  complied  with;  for  it  will  not  be 
denied  that  unless  such  is  evidenced  by  the  proof  in  the  cause, 
or  has  been  admitted  by  the  defendant  in  his  answer,  the  com- 
plainant has  no  right  whatever  to  demand  a  specific  perform- 

CITED:  41  111.  182,  erroneously  as  Church  v.  Jewett.  See  Doyle  v.  Teas, 
4  Scam.  203. 

'Specific  performance. — He  who  seeks,   must  show  complete  performance 
on  his  part.    See  Scott  v.  Shepherd,  3  Gilm.  483,  note  in  this  ed. 
to 


DECEMBER  TERM,  1832.  54 

Church  and  Rayner  v.  Jewett  and  Bailey. 

ance  of  the  contract.  What,  then,  is  the  testimony  ?  It  appears 
that  the  consideration  for  the  land  in  question  was  a  certain 
mare,  and  live  dollars  in  a  note  on  an  individual,  payable  in 
plank.  This  animal  and  the  note  are  to  be  delivered  to  defend- 
ant, and  upon  which  the  conveyance  is  to  be  made.  The  mare 
is  delivered,  but  is  again  returned  (but  refused  to  be  received 
by  the  complainant)  on  the  alleged  ground  of  a  deceit, 
being  said  *to  be  defective.  It  is  not  proposed  to  in-  [*55] 
quire  into  the  truth  or  reality  of  the  alleged  deceit ; 
nor  whether,  indeed,  it  was  practiced,  inasmuch  as  the  proof 
incontestably  shows — and  it  is  indeed  established  also  by  one  of 
the  complainant's  witnesses — that  the  note  for  five  dollars  was  a 
part  of  the  consideration ;  and  that  the  complainant  has  failed  to 
establish  the  delivery  of  the  note  in  question,  or  the  payment 
thereof,  or  an  offer  so  to  do  to  the  defendant.  This  was  a  prec- 
edent condition,  the  performance  of  which  was  essential  be- 
fore the  complainant  could  seek  a  compliance,  on  the  part  of 
the  defendant,  in  the  conveyance  of  the  land.  He  who  seeks 
equity  must  do  equity ;  and  as  the  failure  of  the  complainant 
to  comply  with  the  bargain  has  been  plainly  established,  the 
decree  on  the  merits  and  equity  of  the  case  seems  very  ap- 
parent. 

The  other  point  of  jurisdiction  it  is  not  necessary  to  ex- 
amine, as  if  this  Court  should  be  of  opinion  that  the  bill  could 
alone  have  been  filed  in  the  county  in  which  the  land  lies,  that 
would  then  produce  no  other  beneficial  result  to  the  defend- 
ant than  now  arises  from  a  decision  on  the  equity  of  the 
cause.  The  decree  of  the  Circuit  Court  is  affirmed  with  costs. 

Decree  affirmed. 


JONATHAN  CHURCH  and  DANIEL  RAYNER,  administra- 
tors of  the  estate  of  James  Rayner,  deceased,  plaintiffs 
in  error,  v.  GILLMAN  JEWETT  and  SAMUEL  BAILEY, 
administrators,  and  MARY  BAILEY,  administratrix,  of 
William  Alexander,  deceased,  defendants  in  error. 

Error  to  Monroe. 

COSTS. — A  judgment  for  costs  can  not  be  rendered  against  an  administrator 
in  his  personal  character. 

J.  SEMPLE,  for  the  plaintiffs  in  error. 

CITED  :    3  Scam.  63  ;  50  111.  442;  13  Bradw.  612.    See  Welch  v.  Wallace, 
3  Gilm.  497. 

85 


55  VANDALIA. 


Clark  t>.  Harkness. 


S.  McKoKERTS,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
Various  causes  have  been  assigned  for  error  in  this  case. 
After  an  attentive  examination  of  them,  it  is  not  perceived 
that  any  of  them  are  tenable  but  the  last,  and  that  regards 
the  form  of  the  judgment.  It  is  a  judgment  for  costs  against 
the  plaintiffs  in  the  Circuit  Court,  in  their  personal  character. 
This  is  manifestly  erroneous.  The  judgment  of  the  Circuit 
Court  is  reversed  and  modified  here,  so  as  to  affect  the  plaint- 
iffs only  in  their  representative  character  as  administrators. 

Judgment  reversed. 


[*56]     *THOMAS  P.  CLARK,  plaintiff  in  error,  v.  EBEN- 
HAEKNESS,  defendant  in  error. 


Error  to  Adams. 

CIRCUIT  CounTs—  JURISDICTION—  PLEADING.  —  The  Circuit  Courts  are  limited 
in  their  jurisdiction  to  the  several  counties  in  which  they  are  erected,  ex- 
cept in  cases  -where  such  jurisdiction  is  expressly  extended.  In  order  to 
give  a  Circuit  Court  jurisdiction,  where  the  process  issues  to  a  different 
county  from  that  in  which  the  action  is  instituted,  there  should  be  a  spe- 
cial averment  in  the  declaration,  of  one  of  the  causes  enumerated  in  the 
act  of  1828. 

The  facts  upon  which  the  jurisdiction  arises  must  be  either  expressly  set 
forth,  or  in  such  a  manner  as  to  render  them  certain  by  legal  intendment. 

THIS  was  an  action  of  debt  on  an  award,  commenced  in  the 
Circuit  Court  of  Adams  county,  October  6,  1830.  The  sum- 
mons was  directed  to  Morgan  county,  and  made  returnable  to 
the  October  term,  1830.  At  this  term  the  defendant  appeared 
by  attorney  and  moved  the  Court  to  quash  the  summons, 
because  no  certain  sum  was  set  forth  in  said  writ  as  the  debt 
claimed  by  the  plaintiff.  This  motion  was  overruled,  and  the 
defendant  then  tiled  an  affidavit  of  fraud  in  obtaining  the  award 
sued  on  ;  and  afterward,  at  the  May  term,  1831,  judgment  was 
rendered  against  the  defendant  for  want  of  a  plea,  for  §87  debt 
and  $13.78  damages  assessed  by  the  clerk,  with  costs  of  suit. 
Subsequently,  and  at  the  same  term  of  the  Court,  the  defendant, 
upon  affidavit  tiled,  moved  the  Court  to  set  aside  the  default. 

CITED  :  Jurisdiction  of  Circuit  Court  :  1  Scam.  404  ;  13  111.  442  ;  13  111. 
451.  Declaration  should  aver  what  :  3  Scam.  134  ;  4  Gilm.  558  ;  11  111. 
476.  When  process  issues  to  foreign  county  :  4  Scam.  303. 

See  especially  Kenney  v.  Greer,  13  111.  432,  where  the  above  case  of  Clark 
v.  Harkness  was  overruled. 
86 


DECEMBER  TERM,  1832. 


Clark  v.  Harkness. 


This  motion  was  continued  till  the  October  term,  1832,  and 
then  overruled  by  the  Court,  the  Hon.  Richard  M.  Young 
presiding.  The  defendant  excepted. 

i      T.  FORD  and  M.  McCoNELL,  for  the  plaintiff  in  error. 
A.  W.  CAVAKLY,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  debt  commenced  on  an  award,  in  the 
Circuit  Court  of  Adams  county.  The  summons  was  directed 
to  the  sheriff  of  the  county  of  Morgan,  and  made  returnable 
to  the  Circuit  Court  of  Adams  county,  and  is  in  the  usual 
form,  except  that  the  amount  of  the  debt  claimed  is  not  speci- 
fied. 

Among,  several  points  made  is  one  of  importance,  which  goes 
to  the  jurisdiction  of  the  Circuit  Court.  It  is  contended  that  the 
Circuit  Court  of  Adams  could  not  entertain  jurisdiction  of  the 
cause,  because  it  does  not  appear  from  the  record  that  the  cause 
of  action  arose  in  that  county,  or  that  the  debt  was  specifically 
payable  there.  It  is  obvious,  on  general  principles,  as  well  as  law, 
that  the  Circuit  Courts  are  limited  in  their  jurisdiction  to 
the  ^several  counties  in  which  they  are  erected,  unless  [*57] 
there  shall  be,  by  some  particular  law,  an  express  power 
extending  that  jurisdiction  in  specified  and  enumerated  cases. 
With  respect  to  the  emanation  of  process,  and  the  power  to  reach 
defendants  who  reside  out  of  the  particular  county  in  which  the 
Court  exists,  and  to  compel  their  appearance,  it  is  necessary  to 
examine  the  act  of  the  legislature  of  30th  December,  1828. 
(R.  L.  145;  Gale's  Stat.  166.)  By  the  provisions  of  that  act, 
which  is  emendatory  of  the  "Act  concerning  Practice  in 
Courts  of  Law  "  of  1827,  it  is  provided,  that  "  it  shall  not  be 
lawful  for  a  plaintiff  to  sue  a  defendant  out  of  the  county 
where  the  latter  resides,  or  may  be  found,  except  in  cases  where 
the  debt,  contract,  or  cause  of  action  accrued  in  the  county  of 
the  plaintiff,  or  where  the  contract  may  have  specifically  been 
made  payable."  By  this  provision,  it  was  intended  to  change 
and  restrict  a  practice,  which  existed  under  the  act  of  1827, 
of  compelling  the  appearance  of  a  defendant  in  any  county  in 
the  State,  where  a  creditor  might  elect;  a  most  oppressive  and 
injurious  practice,  which  was  intended  to  be  prohibited  in  fut- 
ure. It  would,  perhaps,  be  proper,  before  a  writ  emanates, 
that  the  officer  of  the  Court  from  which  it  is  prayed,  where  it 
is  sought  to  compel  the  attendance  of  a  person  from  another 
county,  should  require  an  affidavit  of  the  party,  or  his  agent 
or  attorney,  that  the  cause  of  action  accrued  there,  or  that  the 

87 


57  YAKDALIA. 


Clark  v.  Harkness. 


contract  was  specifically  payable  there,  according  to  the  provis- 
ions of  the  act  of  1828.  It  is  not  intended,  in  construing  this 
provision,  to  say  that  because  this  was  not  done  in  the  pie.-ent 
instance  that  there  is  a  want  of  jurisdiction ;  but  still  it  is 
essential,  in  my  judgment,  that  there  should  be  a  special  aver- 
ment in  the  declaration,  of  one  of  the  causes  enumerated  in 
the  act  of  1828,  to  give  jurisdiction.  A  Circuit  Court,  though 
an  inferior  court,  in  the  language  of  the  Constitution,  still 
I  am  willing  to  concede  is  not  so  held  by  the  common  law,  nor 
the  statutes  of  the  State  conferring  its  jurisdiction.  The  cau- 
tion and  jealousy  with  which  the  acts  of  inferior  tribunals  have 
been  viewed,  is  not  applicable  to  them ;  but  they  are,  on  the 
contrary,  to  be  viewed  with  a  spirit  of  enlarged  and  enlightened 
liberality,  in  favor  of  the  regularity  of  their  proceedings.  A 
Circuit  Court,  however,  is  of  limited  jurisdiction,  and  has 
cognizance,  not  of  causes  generally,  but  of  such  only  as  arise 
within  the  county. 

Now,  from  the  face  of  the  writ  in  this  case,  the  fair  pre- 
sumption is,  that  the  court  has  not  jurisdiction  ;  but  that  the 
case  is  without  its  jurisdiction,  the  writ  being  directed  into 
another  county.  This  renders  it  necessary — because  the  pro- 
ceedings of  no  court  can  be  deemed  valid,  further  than  its 
jurisdiction  appears,  or  may  be  fairly  presumed — to  set  forth 
upon  the  record  the  facts  which  give  jurisdiction  ex- 
[*58]  pressly,  or  such  as  by  *legal  intendment  may  render  that 
jurisdiction  certain.  If  we  apply  this  reasoning  to  the 
case  before  us,  we  shall  look  in  vain  into  the  record  for 
an  averment  of  the  existence  of  any  one  of  the  causes  enumer- 
ated in  the  act  of  1828,  upon  which  the  Circuit  Court  could 
exercise  the  jurisdiction  specially  given  in  such  ca^-.  It 
was  necessary  that  the  causes  which  gave  the  Court  the  right 
to  entertain  jurisdiction  should  have  been  specially  set  forth  ; 
and  as  that  has  not  been  done,  it  seems  to  follow,  as  a  conse- 
quence, that  the  cause  was  without  its  jurisdiction. 

A  course  of  decisions  in  the  Supreme  Court  of  the  United 
States,  in  regard  to  the  alienship  and  residence  and  citizenship 
of  suitors  in  the  Circuit  Courts  of  the  United  States,  which  are 
considered  analogous  in  principle,  has  been  adopted,  and  by 
which  it  is  declared,  that  "  the  facts  upon  which  the  jurisdic- 
tion arises  must  be  either  expressly  set  forth,  or  in  such  a 
manner  as  to  render  them  certain  by  legal  intendment."  In 
the  case  of  Turner,  administrator,  v.  Bank  of  North  America, 
4  Da!!.  8.  where  a  note  was  drawn  by  the  defendants,  in  favor 
of  Biddle  &  Co..  who  were  described  "as  using  trade  or  mer- 
chandise in  partnership  together,  at  Philadelphia  or  North 
Carolina,"  it  was  declared,  the  description  of  the  promisees,  con- 


DECEMBER  TEEM,  1832.  58 

Scott  v.  Thomas. 

tained  no  averment  that  they  were  citizens  of  a  State,  nor  any 
which  by  legal  intendment  could  amount  to  such  averment, 
and  that  it  was  error. 

I  am  of  opinion  that  the  judgment  of  the  Circuit  Court  of 
Adams  be  reversed  for  want  of  jurisdiction. 

Judgment  reversed. 

WILSON,  Ch.  J.,  did  not  sit  in  this  cause. 


SAMUEL  SCOTT,  appellant,  v.  JOHN  THOMAS,  appellee. 

Appeal  from  St.  Clair. 

STATUTE  OP  FRAUDS — PROMISE  TO  PAY  THE  DEBT  OP  ANOTHER. — There 
is  no  distinction  in  law  between  a  promise  to  pay  the  debt  of  another,  and  a 
promise  to  do  some  collateral  act  by  which  such  payment  might  be  obtained. 
The  circuity  of  the  process  does  not  vary  the  principle. 

Where  the  moving  consideration  for  the  promise  is  the  liability  of  a  third 
person,  there  the  promise  must  be  in  writing  ;  but  if  there  is  a  new  con- 
sideration moving  from  the  promisee  to  the  promisor,  there  the  superadded 
consideration  makes  it  a  new  agreement,  which  is  not  within  the  statute. 

A  parol  promise  to  pay  the  debt  of  another  is  void. 

THIS  was  an  action  of  assumpsit  commenced  in  the  St.  Clair 
Circuit  Court,  by  the  appellee  against  the  appellant. 

The  cause  was  tried  at  the  April  term,  1831,  before 
the  Hon.  *Theophilus  W.  Smith  and   a  jury,  and  a     [*59] 
verdict  rendered  for  the  appellee  for  $114.40.     Judg- 
ment was  rendered  on  this  verdict,  and  an  appeal  taken  to 
this  Court. 

J.  SEMPLE,  for  the  appellant,  cited  8  Term  R.  80  ;  1  Bur. 
373  ;  1  Bos.  &  Pul.  158  ;  4  Barn.  &  Aid.  601-2  ;  5  East,  10  ; 
2  Saund.  P.  &  E.  547  ;  1  Starkie,  10  ;  2  Taunt.  38  ;  6  East,  602  ;  | 
2  Sannd.  P.  &  E.  902  ;  4  Johns.  422  ;  Am.  Dig.  168,  §§  15, 16  ; ' 
5  Cranch,  142 ;  7  Johns.  205 ;  8  Johns.  29 ;  Am.  Dig.  260, 
§§  20,  23. 

As  to  the  mode  of  raising  the  question  presented  in  this 
case,  he  cited  4  Johns.  237  ;  10  Johns.  141 ;  1  Chitty  PL  471, 
475  ;  1  Wilson,  305  ;  3  Johns.  210  ;  4  Mass.  378. 

D.  BLACKWELL,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
The  declaration  of   Thomas,  the  plaintiff  below,   contains 
three  counts.     The  first  charges  that  William  Biggs  and  Will- 

CITED:  17  111.  91.  See  1  Starr  &  C.  111.  Stat.  1187,  1[1,  notes,  2;  Baptist 
Church  v.  Hyde,  40  111.  150;  Eddy  v.  Roberts,  17  111.  507. 


VAKDALIA. 


Scott  v.  Thomas. 


iam  Biggs,  Jr.,  were  indebted  to  him  by  note,  and  that  in  con- 
sideration that  he  would  forbear  until  the  next  term  of  the 
Court  to  sue  on  the  same,  that  Scott,  the  defendant,  promised 
if  the  Biggs  did  not  pay  it,  that  he  would  ;  and  that  he,  Thomas, 
did  forbear  to  sue,  biit  that  neither  the  Biggs  nor  Scott  had 
paid  the  same.  The  second  and  third  counts  charge  that  in 
consideration  of  forbearance  to  sue  the  Biggs  on  said  note, 
the  defendant  promised,  if  the  Biggs  did  not  pay  it  by  the 
next  Court,  that  he,  defendant,  would  foreclose  a  mortgage 
which  he  held  from  the  Biggs,  upon  a  tract  of  land,  and  that 
the  plaintiif  might  buy  it  in  for  $1.25  per  acre,  if  it  would 
not  sell  for  more  ;  and  after  satisfying  his  own  debt,  pay  the 
surplus,  if  any,  over  to  defendant ;  and  that  he  did  forbear  to 
sue  and  that  the  note  was  not  paid,  and  the  defendant  did  not 
foreclose  his  mortgage,  and  permit  the  plaintiif  to  buy  in  the 
land,  and  satisfy  his  debt.  To  all  these  counts  the  defendant 
pleaded :  1st,  non-assuinpsit ;  2d,  that  the  promises,  if  made, 
were  by  parol,  and  therefore  void  by  the  statute  of  frauds  and 
perjuries.  To  the  second  plea  the  defendant  demurred,  and 
the  Court  sustained  the  demurrer.  A  trial  was  had  on  the 
plea  of  non-assumpsit,  and  a  verdict  and  judgment  given  for 
the  plaintiff.  Several  exceptions  were  taken  to  the  instruc- 
tions given  to  the  jury,  and  to  the  opinion  of  the  Court  in  re- 
fusing to  give  instructions  asked  for.  It  will  be  unnecessary 
to  notice  these  exceptions,  as  the  question  raised  by  the  decis- 
ion of  the  Court  upon  the  demurrer  to  the  declaration  will 
settle  the  case.  In  the  argument  of  this  case  a  distinction  was 
attempted  to  be  drawn  between  a  promise  to  pay  the  debt  of 
another  and  a  promise  to  do  some  collateral  act  by  which  such 
payment  might  be  obtained.  No  such  distinction,  however, 
is  recognized  by  any  of  the  cases  relied  on,  nor  does 
1  [*60]  any  *such  exist.  If  the  act  promised  to  be  done,  is  in  its 
consequences  to  operate  as  a  discharge  of  the  debt 
of  another,  the  circuity  of  the  process  by  which  that  object  is 
proposed  to  be  effected  does  not  vary  the  principle  of  the  case. 
The  promise  as  charged  in  the  second  and  third  counts  of 
the  declaration  was  in  effect  to  pay  the  debt  of  the  Biggs, 
but  out  of  a  particular  fund,  and  in  a  particular  way,  in  consider- 
ation of  forbearance.  This .  agreement  is  clearly  within  the 
statute  of  frauds  and  perjuries.  The  distinction  in  relation  to 
promises  under  that  branch  of  the  statute  applicable  to  this 
case,  is,  that  where  the  moving  consideration  for  the  promise  is 
the  liability  of  the  third  person,  there  the  promise  must  be 
in  writing  ;  but  if  there  is  a  new  consideration  moving  from 
the  promisee  to  the  promisor,  as  where  he  gives  up  some  lien 
or  security,  there  the  superadded  consideration  makes  it  a  new 

40 


DECEMBER  TERM,  1832.  60 

Marston  v.  "Wilcox. 

agreement,  for  the  performance  of  which  no  third  rjerson  is 
liable,  and,  consequently,  it  is  not  within  the  stata'ce. 

In  the  present  case,  the  only  moving  consideration  for  the 
defendant's  undertaking  is  the  liability  of  the  Biggs.  ]STo 
advantage  can  accrue  to  the  defendant;  his  promise  is  a  collat- 
eral one,  and  being  by  parol,  is  void,  under  the  statute.  (.Fish 
v.  Hutchinson,  2  Wilson,  94.) 

The  judgment  of  the  Court  below  is  reversed  with  costs. 

Judgment  reversed. 

SMITH,  J.  dissented. 


DAVID  MARSTON,  plaintiff  in  error,  v.  JOHN  R.  WILCOX, 
defendant  in  error. 

Error  to  Hancock. 

PROBATE  COURTS  —  FRATTD  — JURISDICTION.  —  Courts  of  Probate  have 
power  to  revoke  letters  of  administration  obtained  through  fraud. 

The  right  to  inquire  whether  a  fraud  has  been  practiced,  is  a  necessary  in- 
cident to  the  power  given  by  statute  ' '  to  hear  and  determine  the  right  of 
administration . ' ' 

ON  the  7th  day  of  June,  1831,  the  Judge  of  Probate  of 
Hancock  county,  granted  letters  of  administration  to  John  R. 
Wilcox,  upon  the  estate  of  Morrill  Marston,  deceased,  he 
claiming  to  be  a  creditor  of  said  estate. 

Subsequently,  and  after  the  expiration  of  six  months  from 
the  decease  of  the  intestate,  David  Marston,  a  brother  of  the 
deceased,  applied  to  the  Judge  of  Probate  of  Hancock  county, 
to  revoke  the  letters  granted  to  Wilcox,  upon  the  ground  that 
Marston  was  no  creditor  of  the  deceased,  and  that  the 
letters  were  obtained  by  *his  fraudulently  representing     [*61j 
himself  to  be  such.     The  Court  of  Probate  revoked 
the  letters,  and  appointed   David  Marston  administrator   of 
the  estate,  as  next  of  kin. 

Wilcox  appealed  to  the  Circuit  Court,  and  at  the  October 
term,  1832,  the  Circuit  Court,  the  Hon.  Richard  M.  Young 
presiding,  reversed  the  decision  of  the  Judge  of  Probate,  up- 
on the  following  grounds,  as  the  bill  of  exceptions  shows: 

"  That  inasmuch  as  the  Court  of  Probate  was  a  court  of 
special  limited  jurisdiction,  created  by  our  statute  only,  it  can 
not  have  or  exercise  any  other  or  greater  power  and  discretion 

Revocation  of  letters  of  administration.  See  1  Starr  &  C.  111.  Stat.  204, 
Tf  26  and  notes. 

41 


61  YANDALIA. 


Marstun  r.  Wilcox. 


than  is  particularly  specified  and  permitted  by  the  acts  of  our 
General  Assembly,  from  which  it  derives  its  existence  ;  and 
that,  consequently,  the  Judge  of  Probate  can  not  revoke  the 
letters  of  administration,  except  for  some  of  the  causes  enu- 
merated in  the  statute  ;  and  that  in  the  present  case,  the  only 
remedy  which  remained  to  the  said  David  Marston,  who  claims 
to  be  the  next  of  kin  of  the  deceased,  after  letters  of  adminis- 
tration were  granted  to  the  said  Wilcox,  was  by  taking  an  ap- 
peal from  the  original  order  of  the  Court  of  Probate,  appoint- 
ing the  said  Wilcox  administrator  as  aforesaid,  within  ninety 
days  after  the  same  was  made ;  and  that  he  can  not  now,  by 
an  original  application  in  this  way,  cause  the  said  letters  to  be 
revoked,  notwithstanding  the  said  Wilcox  may  in  fact  have 
obtained  his  letters  of  administration  by  fraud,  and  although 
he  may  not  have  been  a  creditor  of  the  estate  of  the  deceased, 
as  was  at  that  time  supposed." 

A.  WILLIAMS,  for  the  plaintiff  in  error. 

PFGH  and  WHITNEY,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
The  only  question  presented  in  this  case  for  consideration 
is,  whether  a  Judge  of  Probate,  after  he  has  granted  letters 
of  administration,  can  revoke  them  upon  the  ground  that  they 
were  obtained  by  fraud.  The  "Act  relative  to  Wills  and 
Testaments,  Executors  and  Administrators,  and  the  Settle- 
ment of  Estates"  passed  January  23,  1829,  is  very  broad  in 
giving  jurisdiction  to  Courts  of  Probate.  By  the  15th  section 
of  that  act,  Courts  of  Probate  "  shall  hear  and  determine  the 
right  of  administration  of  estates  of  persons  dying  intestate ; 
and  to  do  all  other  things  touching  the  granting  of  letters  tes- 
tamentary, and  of  administration,  and  the  settlement  of  estates 
according  to  right  and  justice,  in  such  manner  as  may  be  pre- 
scribed by  law/'  (R.  L.  616;  Gale's  Stat.  690.) 

On  an  application  in  this  case,  the  Court  of  Probate  decided 
that  Wilcox,  the  administrator,  had  obtained  the  letters  of  ad- 
ministration by  fraudulently  representing  that  he  wras  a  credit- 
or of  the  intestate,  when  in  truth  he  was  not — and 
[*62]  proceeded  to  revoke  *the  letters.  Upon  appeal  to  the 
Circuit  Court,  that  Court  decided  that  the  Court  of 
Probate  was  a  court  of  special  limited  jurisdiction  created  by 
statute;  and  that  it  could  not  have  or  exercise  any  other 
or  greater  power  and  discretion  than  is  particularly  specified 
and  i  ermitted  by  the  acts  of  the  General  Assembly,  from 
which  it  derives  its  existence;  and  upon  that  ground,  re  versed 


DECEMBER  TERM,  1832.  62 

Marston  v.  Wilcox. 

the  decision  of  the  Court   of  Probate,  without  investigating 
the  facts  of  the  case. 

The  position  of  the  Circuit  Court  is  undoubtedly  correct, 
that  Courts  of  Probate  are  created  by  statute,  and  to  the  stat- 
ute we  must  look  to  ascertain  the  extent  of  their  jurisdiction. 
But  has  not  the  Circuit  Court  put  too  limited  a  construction 
'  upon  the  extent  of  the  jurisdiction  conferred  on  Courts  of 
Probate  ?  When  the  legislature  vested  in  Courts  of  Probate 
the  power  to  "hear  and  determine  the  right  of  administration," 
it  necessarily  conferred  all  those  incidents  which  are  necessary 
to  arrive  at  a  correct  determination.  The  granting  of  admin- 
istration is  necessarily  an  ex  parte  proceeding,  and  consequent- 
ly the  Court  of  Probate  is  liable  to  be  imposed  on  by  appli- 
cants for  administration.  If,  then,  letters  be  obtained  by  a 
fraudulent  representation,  is  it  not  a  necessary  incident  to  the 
right  "  to  hear  and  determine,"  that  the  Court  should  have 
power  to  inquire  whether  any  such  fraud  has  been  practiced? 
We  think  the  right  to  inquire  whether  a  fraud  has  been  prac- 
ticed is  a  necessary  incident  to  the  jurisdiction  conferred  by 
the  statute.  In  England,  the  courts  which  have  authority 
to  grant  letters  of  administration,  are  courts  of  inferior  and 
limited  jurisdiction;  yet  it  has  there  been  frequently  decided, 
that,  "  If  administration  be  granted  to  a  wrong  party,  in  such 
case,  the  Ordinary  may  repeal  it,  and  grant  it  to  another,  for 
he  has  not  executed  his  authority ;  and  it  is  a  power  incident 
to  every  court  to  rectify  its  errors."  (Toller's  Executors,  123, 
and  authorities  there  cited.)  It  also  ap]  ears  by  a  note  in  Toller, 
that  in  Pennsylvania,  "  The  Register's  Court  has  a  right  to  re- 
voke letters  of  administration  where  they  have  issued  im- 
properly, and  direct  new  letters  to  issue  to  the  proper  person. 
(4  Serg.  &  Rawle,  201.)  From  these  authorities,  and  from 
the  reason  of  the  case,  we  are  of  opinion  that  the  Circuit  Court 
erred  in  reversing  the  decision  of  the  Court  of  Probate,  upon 
the  ground  assumed  by  the  Circuit  Court,  and  consequently 
the  judgment  of  the  Circuit  Court  must  be  reversed  with 
costs,  and  the  cause  remanded  for  further  proceedings. 

Judgment  reversed. 


63  VANDALIA. 


Bogardus  v.  Trial. 


[*63J     *JOHN  L.  BOGARDUS,  plaintiff  in  error,  v.  JOHN 
G.  TRIAL,  defenclaut  in  error. 

Error  to  Peoria. 

PI.EADIXG — DENTURRER — DECLARATION. — In  a  special  demurrer  the  par- 
ticular exception  intended  to  be  relied  on  should  be  minutely  set  forth.* 

COPY  OF  NOTE. — A  copy  of  a  note  filed  with  or  attached  to  a  declaration, 
is  no  part  of  the  declaration. 

A  count  on  a  promissory  note,  and  a  coiint  for  goods,  wares  and  mer- 
chandise sold  and  delivered,  may  be  joined  in  the  same  declaration.* 

VARIANCE— OVER. — In  order  to  take  advantage,  on  demurrer,  of  a  vari- 
ance between  the  note  set  out  in  the  declaration  and  the  copy  of  the  note 
filed  with  the  same,  oyer  should  be  craved,  and  the  note  set  out  in  hcec  cerba, 
in  the  demurrer.* 

THIS  was  an  action  of  assumpsit  commenced  in  tlie  Peoria 
Circuit  Courtj  by  the  plaintiff  in  error  against  the  defend- 
ant in  error.  The  first  count  in  the  declaration  is  as  follows  : 

"John  L.  Bogardus,  plaintiff  in  this  suit,  complains  of 
John  G.  Trial,  defendant  in  this  suit,  in  a  plea  of  the  case  ; 
for  that  whereas  the  said  defendant,  by  his  promissory  note 
in  writing,  his  own  proper  hand  being  thereunto  affixed,  dated 
the  second  day  of  November,  in  the  year  eighteen  hundred 
and  twenty-nine,  for  value  received,  promised  to  pay  the 
said  plaintiff  the  sum  of  fifty  dollars,  when  he,  the  said  de- 
fendant, should  be  thereunto  afterward  requested." 

The  second  is  the  usual  count  for  money  had  and  received, 
and  for  goods,  wares,  and  merchandise  sold  and  delivered. 
The  copy  of  the  note  attached  to  the  declaration  is  in  the 
following  words : 

"  For  value  received,  I  promise  to  pay  to  John  L.  Bogardus, 
or  his  order,  two  hundred  bushels  of  corn,  to  be  delivered 
on  or  previous  to  the  twenty-fifth  day  of  December  next,  at 
my  field,  at  such  times  as  he  shall  call  for  it,  he  giving  me  one 
day's  notice  for  each  load  of  his  team.  As  witness  my  hand, 
this  2d  day  of  November,  A.  D.  1829.  It  is  understood 
that,  in  default  of  delivering  the  corn  as  above,  I  promise  to 
pay  the  deficit  in  cash,  at  twenty-five  cents  a  bushel. 

"  JOHN  G.  TRIAL.  [  L.  s.] 

"  Attest,  AUGUSTUS  LANGWORTHY, 
"  FRANCIS  HEEBENEB." 

L.  BIGELOW,  for  the  plaintiff  in  error. 
•CITED    91  111.  451.    bSee  Gatton  v.  Dimmitt,  27  HI.  400. 

44 


DECEMBEK  TEEM,  1832.  63 

Bogardus  v.  Trial. 
T.  FOED,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  on  the  case  in  assumpsit.  The  declara- 
tion contains  two  counts :  one  on  a  promissory  note, 
payable  as  *described  in  the  declaration,  on  demand ;  the  [*64] 
second  is  the  usual  count,  for  money  had  and  received, 
and  for  goods,  wares  and  merchandise  sold  and  delivered. 
The  defendant  tiled  a  special  demurrer,  and  simply  assigned  for 
causes  of  demurrer  :  1st.  The  first  count  is  insufficient  and  in- 
formal; 2d.  There  is  an  improper  joinder  of  actions  ;  3d.  The 
second  count  is  defective.  The  rule  in  relation  to  special 
causes  of  demurrer,  is  too  well  settled  to  allow  this  general  and 
indefinite  mode  of  specifying  the  causes.  Where  the  objection 
goes  to  form  and  not  substance,  the  particular  exception  in- 
tended to  be  relied  on  should  be  minutely  set  forth.  Here  it 
is  barely  alleged  that  the  first  count  is  "  insufficient  and  in- 
formal," but  in  what  that  informality  and  insufficiency  consists 
is  not  shown.  The  second  ground  is  to  the  joinder  of  the 
counts,  and  is  therefore  not  a  special  but  a  general  and  sub- 
stantive cause  of  demurrer.  Is  it,  however,  well  taken  ?  I 
think  not.  Both  the  counts  are  in  assumpsit,  and  are  held  to 
be  joinable  by  the  universal  authority  of  all  courts.  The  de- 
fendant's counsel,  probably,  in  making  this  exception,  adverted 
to  the  copy  of  the  note  appended  to  the  declaration,  which  is 
in  reality  a  covenant  under  seal,  and  the  original  of  which,  it 
is  true,  on  the  trial,  could  not  have  been  given  in  evidence 
under  either  of  the  counts  in  the  declaration ;  but  which 
could  not  be  used  as  causes  of  demurrer,  to  show  a  variance 
between  the  count  and  the  note  declared  on.  The  copy  ex- 
hibited with  the  declaration  being  considered,  by  repeated  ad- 
judications, no  part  of  the  declaration  to  have  shown  the  va- 
riance, oyer  should  have  been  craved  and  the  note  set  out  in 
Jmc  verba  in  the  demurrer ;  and  then  the  variance  would  have 
been  manifest.  The  third  cause  of  demurrer  is  not  sustain- 
able ;  for  although  in  point  of  form  the  count  may  be  de- 
fective, still  it  is  substantially  good.  The  defect  in  point  of 
form  is  not  shown,  and  is  therefore  not  available. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  remanded,  for  further  proceedings,  to  the  Cir- 
cuit Court  of  Peoria. 

Judgment  reversed. 

WILSON,  Ch.  J.,  did  not  sit  in  this  cause. 

45 


64  YANDALIA. 


McKinley  r.  Braden. 


EDWARD  McKiNLEY,  plaintiff  in  error,  v.  JAMES  BRA- 
DEN,  administrator  of  David  Gregory,  deceased,  de- 
fendant in  error. 

Error  to  Madison. 

PLEADING — PROOF. — Under  the  general  issue  in  an  action  by  an  admin- 
istrator, proof  that  (he  plaintiff  had  received  letters  of  aclministra- 
[*65|    tiun    upon  the  estate  of  his  intestate,  is  Unnecessary.     The  fact 
whether  he  was  or  was  not  an  administrator,  is  not  put  in  issue. 

J.  SEMPLE,  for  the  plaintiff  in  error. 

D.  BLACKWELL,  for  the  defendant  in  error. 

This  cause  was  tried  at  the  June  term,  1830,  of  the  Madi- 
son Circuit  Court,  before  the  Hon.  Theophilus  W.  Smith  and 
a  jury,  and  a  verdict  rendered  for  the  defendant  in  error,  the 
plaintiff  in  the  Court  below,  for  $28.  Judgment  was  ren- 
dered upon  this  verdict,  and  a  writ  of  error  prosecuted  to  this 
Court. 

The  bill  of  exceptions  is  as  follows : 

"  Be  it  remembered  that"  at  the  June  term,  1830,  the  above 
cause  came  on  for  trial ;  the  plaintiff  proved  by  a  witness  that 
the  mare  in  question  was  the  property  of  David  Gregory,  de- 
ceased, at  the  time  of  his  death,  and  after  his  death  came  into 
the  possession  of  Polly  Gregory,  the  widow  of  said  David 
Gregory,  deceased  ;  he  proved,  also,  by  the  same  witness,  that 
the  same  mare  came  into  the  possession  of  the  defendant,  who 
sold  the  same  to  one  Bennet  Nowlin,  and  applied  the  proceeds 
of  the  sale  to  his  own  use  ;  and  also,  by  the  same  witness,  that 
the  said  mare  was  worth  $25.  The  defendant  then  offered  to 
prove  that  he  bought  the  taid  mare  of  the  wife  of  the  plaint- 
iff, which  was  objected  to  by  the  plaintiff,  and  the  objection 
sustained  by  the  Court.  The  plaintiff  then  proved  by  How- 
ard, Findley  and  Cooper,  that  the  said  mare  was  worth  $45. 
Findley  did  not  say  that  he  had  ever  seen  the  plaintiff  in  pos- 
session of  said  mare,  but  when  he  saw  her,  she  was  in  posses- 
sion of  the  defendant.  Cooper  stated  that  when  he  saw  the 
said  mare,  which  was  more  than  two  years  and  six  months  ago, 
she  was  standing  with  plaintiff's  horses  under  some  trees  near 
Braden's  house,  and  he  considered  her  in  Braden's  possession  ; 
but  he  had  never  seen  the  plaintiff  in  actual  possession  of  the 

CITED:  60111.32. 

46 


DECEMBER  TERM,  1832.  65 

McKinley  v.  Braden. 

said  mare,  either  riding,  working,  or  otherwise  using  or  exer- 
cising acts  of  ownership  over  her  ;  and  this  was  all  the  testi- 
mony produced  on  either  side.  The  defendant  then  moved 
the  Court  to  instruct  the  jury  that  unless  they  believed  from 
the  testimony,  that  the  plaintiff  had  proven  that  he  was 
administrator  of  David  Gregory,  they  must  find  for  the  de- 
fendant, which  instruction  the  Court  refused  to  give,  to  which 
the  defendant  excepts,  etc.  The  Court  then  instructed  the 
jury,  that  if  they  believed  from  the  testimony  that  the  plaint- 
iff had  at  any  time  been  in  actual  possession  of  the  said  mare, 
arid  that  the  defendant  converted  her  to  his  own  use,  either 
by  selling  her,  or  refusing  to  deliver  her  when  demanded, 
they  must. find  for  the  plaintiff,  unless  they  believe  that  the 
defendant  had  shown  title  to  the  said  mare  by  purchase  or 
otherwise,  from  some  person  authorized  to  sell  the 
same,  and  that  it  was  ^unnecessary  for  the  plaintiff  to  [*66] 
prove  that  he  was  administrator ;  to  all  which  the 
defendant  excepts,  etc." 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  trover  and'  conversion,  for  a  horse. 
The  plaintiff  sues  in  his  representative  capacity.  The  declara- 
tion is  in  the  usual  form,  except  that  the  possession  of  the 
plaintiff  is  alleged  to  be  in  his  right  as  administrator.  The 
defendant  demurred  to  the  declaration.  This  demurrer  was 
overruled.  The  defendant  then  pleaded  four  several  pleas. 
The  plaintiff  demurred  to  the  first,  third,  and  fourth  pleas. 
On  the  joinder  in  demurrer  and  after  argument,  the  Court 
adjudged  those  pleas  bad  and  overruled  the  demurrer  to  the 
second  plea  ;  on  which  an  issue  was  made,  trial  had,  and  ver- 
dict rendered  for  defendant.  Afterward  the  Court  set  aside 
the  verdict,  because  the  issue  on  the  second  plea  was  an  im- 
material one ;  and  by  the  consent,  of  the  parties,  a  repleader 
was  awarded,  instead  of  entering  a  judgment  non  obstante  ver- 
edicto.  The  defendant  then  pleaded  the  general  issue,  and  the 
cause  was  tried,  and  a  verdict  rendered  for  the  plaintiff.  On 
the  second  trial  of  the  cause,  the  defendant  asked  the  Court  to 
instruct  the  jury  that  unless  they  believed,  from  the  testimo- 
ny, that  the  plaintiff  had  proven  that  he  was  administrator  of 
David  Gregory,  they  must  find  for  defendant ;  which  instruc- 
tion was  refused ;  but  the  Court  instructed  the  jury  that  if 
they  believed  from  the  testimony  that  the  plaintiff  had  at  any 
time  before  suit  brought,  been  in  the  actual  possession  of  the 
animal,  and  that  the  defendant  converted  it  to  his  own  use, 
either  by  selling  or  refusing  to  deliver  it  up  when  demanded, 
they  ought  to  find  for  the  plaintiff,  unless  they  believed  that 

47 


66  VANDALIA. 


McKinley  t>.  Braden. 


the  defendant  had  shown  title  to  the  animal,  by  purchase  or 
otherwise,  from  some  person  authorized  to  sell,  and  that  it 
was  unnecessary  for  the  plaintiff  to  prove  that  he  was  admin- 
Lstrator. 

Various  and  numerous  causes  have  been  assigned  for  error, 
arising  out  of  the  demurrers,  pleas,  and  the  judgment  of  the 
Circuit  Court  thereon,  and  in  awarding  a  repleader.  After 
an  attentive  examination  of  the  several  grounds  relied  on  as 
causes  of  error,  we  are  inclined  to  believe  the  judgment  of  the 
Circuit  Court  correct  on  all  the  points  raised  under  the  form 
and  matters  of  pleading.  As  to  the  award  of  the  repleader, 
it  was  a  matter  of  consent,  and  manifestly  for  the  benefit  of 
the  defendant,  as  otherwise,  on  setting  aside  a  verdict  on  an 
immaterial  issue,  the  rule  is  to  enter  judgment  for  the  plaint- 
iff, notwithstanding  the  verdict.  Of  this,  then,  he  can  not 
complain. 

On  the  exception  to  the  opinion  of  the  Court  on  the  instruc- 
tions given,  we  see  no  cause  to  doubt  its  correctness.  The  only 
supposed  inaccuracy  is,  doubtless,  in  relation  to  that  part 
[*67]  which  *decides  that  the  letters  of  administration  need 
not  be  produced.  Had  the  plaintiff  declared,  as  he  might 
have  done,  on  his  possession,  without  averring  it  to  be  in  his  rep- 
resentati  ve  character,  if  the  fact  was  that  he  had  actual  possession, 
he  would  have  been  entitled  to  recover,  on  the  further  proof 
of  a  conversion,  without  showing  his  right  as  administrator  to 
the  property.  May  not,  then,  this  allegation  of  his  being 
administrator  be  considered  as  altogether  an  unnecessary  and 
immaterial  averment,  and  therefore  not  required  to  be  proven  ? 
But  as  the  plaintiff  had  made  profert  of  his  letters  of  admin- 
istration, and  the  defendant  had  not  replied  that  he  was  not 
administrator,  that  fact  was  not  in  issue,  and  consequently 
need  not  be  proven ;  but  it  must,  by  not  denying  it,  and 
pleading  the  general  issue,  have  been  admitted  by  the  defend- 
ant. The  character  in  which  the  plaintiff  sued  was  not  ques- 
tioned, and  therefore  it  was  unnecessary  to  be  proven. 

We  are  satisfied  the  cause  has  been  decided  correctly,  and 
the  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affitined. 

LOCKWOOD,  J.,  dissented. 

48 


DECEMBEK  TERM,  1832.  67 

County  of  Madison  v.  Bartlett.    The  People  v.  Bartlett. 


THE  COUNTY  OF  MADISON,  plaintiff  in  error,  v.  JOSEPH 
BARTLETT,  defendant  in  error. 

THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS,  plaintiffs  in 
error,  v.  JOSEPH  BARTLETT,  defendant  in  error. 

Error  to  Madison. 

INTEREST — DEFINITION. — Interest  is  the  legal  damages  or  penalty  for  the 
unjust  detention  of  money. 

A  county  is  not  bound  to  pay  interest  on  county  orders. 

A  county  order  for  "  $16.50,  or  its  equivalent  in  State  paper,"  is  an  order 
for  $16.50,  or  so  many  State  paper  dollars  as  will  amount  to  that  3um,  at 
their  current  value. 

/ 

THESE  causes  were  tried  upon  an  agreed  case  made  by  the 
parties,  before  the  Hon.  Theophilus  W.  Smith,  in  the  Madison 
Circuit  Court,  at  the  October  term,  1831,  and  judgments  were 
rendered  in  favor  of  Bartlett. 

A.  COWLES,  EDWARDS,  and  PKICKETT,  for  the  plaintiffs  in  er- 
ror, cited  Acts  of  1823,  210,  §§  19  and  20;  Acts  of  1827,  335, 
§§30and38  (K.  L.  520,  522,  §§30  and  38;  Gale's  Stat.  567,  568); 
Idem,  §§  18  and  19 ;  Acts  of  1831,  126  (R.  L.  528,  §  5  ;  Gale's 
Stat.  573);  Acts  of  1819,  299  ;  2  Am.  Dig.  332  ;  Chitty 
on  Cont.  195  ;  2  Comyn  *on  Cont.  206,  note ;  3  Cond.     [*68] 
Repts.  15  ;  1   Cond.  Repts.  376;  2  do.  189,  195;  Acts 
of  1827,  105,  §  13  (R.  L.  168,  §  13;  Gale's  Stat.  197). 

J.  SEMPLE,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
These  causes  come  into  this  Court  upon  agreed  cases  from 
the  Madison  Circuit  Court.  Two  questions  are  presented  for 
our  consideration  :  First,  is  the  County  of  Madison  bound  to 
pay  intere  t  on  county  orders,  from  their  date  until  paid, 
drawn  in  the  following  manner,  to  wit :  "  September  term  of 
the  Commissioners'  Court,  1822.  Ordered  that  David  Sweet 
be  allowed  §8  for  eight  days'  attendance,  as  constable,  upon 
the  Circuit  Court  of  Madison  county,  at  May  term,  1820,  as 
per  order  of  the  Circuit  Court.  Attest,  Joseph  Conway, 

CITED  :  Statute  of  limitations  as  a  bar  to  the  State :  1  Scam.  107.  Inter- 
est, against  whom  recoverable :  31111.  53'2;  a  creature  of  the  statute:  86 
111.  385;  whether  counties  are  liable  to  pay:  11  111.  175;  whether  recoverable 
at  common  law:  13  111.  546;  99  111.  354. 

VOL.  I.-4  49 


68  VANDALIA. 


County  of  Madison  v.  Bartlett.    The  People  v.  Bartlett. 

Clerk."  Second,  is  said  county  bound  to  pay  interest  from 
date  until  paid,  and  advance  on  county  orders  drawn  in  the  fol- 
lowing manner,  to  wit :  "  December  term  of  the  Commission- 
ers' Court  for  Madison  county,  1825.  Ordered  that  William 
Moore  be  allowed  the  sum  of  one  dollar,  or  its  equivalent  in 
State  paper,  for  services  as  a  judge  of  a  special  election  last 
month,  as  per  voucher  filed.  Attest,  Hail  Mason,  Clerk."  Or, 
in  other  words,  when  State  paper  was  worth,  when  tlie  order 
issued,  only  one  third  of  a  dollar,  is  the  county  bound,  in  dis- 
charge of  such  order,  to  pay  three  dollars  in  money  and  in- 
terest on  three  dollars,  from  the  date  of  the  order  until  paid? 

It  appears  from  the  agreed  cases  that  there  was  no  money 
in  the  county  treasury  from  the  year  1820  until  the  year 
1830,  during  which  time  all  the  orders  in  controversy  were 
issued.  It  further  appears  from  the  cases,  that  Bartlett  was 
treasurer  of  the  county  of  Madison,  and  that  as  treasurer  he 
settled  with  the  sheriff  without  the  consent  of  the  Commis- 
sioners' Court,  and  allowed  him  interest  on  specie  orders,  and 
interest  and  advance  on  equivalent  orders,  so  that  if  he  was 
justified  in  making  the  allowances  of  interest  and  advance,  the 
county  would  fall  in  debt  to  the  county  treasurer  in  the  sum 
of  $870.86,  for  which  sum  he  would  be  entitled  to  judgment. 
But  if  the  Court  should  be  of  opinion  that  the  county  was 
not  bound  to  pay  interest  on  sj  ecie  orders,  and  advance  and 
interest  on  equivalent  orders,  then,  by  the  cases,  the  Court  is 
to  render  judgment  against  Bartlett  for  $790.  "  It  is  further 
agreed  by  the  cases,  that  the  taxes  for  1828  were  due  1st  De- 
cember, 1828,  the  taxes  for  1829  were  due  1st  March,  1830. 
It  is  also  agreed  that  the  said  treasurer  paid  in  when  due,  1st 
December,  1828,  $871.06,  which  he  had  received  from  the 
sheriff  on  the  tabular  form  for  1828,  on  which  no  interest  or 
advance  was  claimed.  That  he  also  paid  in,  in  like 
[*69]  *manner,  on  the  tabular  form  of  1829,  $726.80,  on 
which  no  interest  or  advance  was  claimed."  Other 
stipulations  and  facts  are  contained  in  the  agreed  cases,  which 
it  is  not  material  to  notice. 

Is  a  county  bound  to  pay  interest  on  county  orders,  from 
the  day  of  their  issuing  until  paid  ?  In  order  to  a  full  under- 
standing of  this  question,  it  will  be  proper  to  inquire  into  the 
nature  of  the  indebtedness  of  the  counties,  which  require  the 
issuing  of  the  orders  in  question. 

By  law,  the  counties  are  compelled  to  allow  county  officers 
compensation  for  their  services,  which  are  generally  fixed  and 
ascertained;  but  the  greatest  portion  of  their  indebtedness 
arises  from  contracts  to  build  and  repair  court  houses,  jails  and 
bridges,  and  for  supporting  paupers.  For  these  and  similar 

50 


DECEMBER  TERM,  1832.  69 

County  of  Madison  v.  Bartlett.    The  People  v.  Bartlett. 

county  expenses,  it  is  evident  that  the  county  has  no  fixed  or 
settled  rule  t )  regulate  the  amount  it  will  have  to  pay.  In 
these  cases  the  sum  agreed  to  be  paid  will  necessarily  depend, 
in  a  great  measure,  upon  the  time  that  will  probably  intervene 
between  the  period  of  rendering  the  labor  or  services,  or  fur- 
nishing materials,  and  the  payment  of  the  money.  If  pay- 
ment is  likely  to  be  delayed  for  a  long  and  uncertain  time, 
the  county  will  be  under  the  necessity  of  agreeing  to  pay  a 
much  higher  price  for  labor,  services  and  materials,  than  it 
would  if  it  were  certain  that  the  money  would  be  in  the  treas- 
ury when  the  time  of  payment  should  arrive.  Consequently 
the  price  of  labor  or  property  will  always  be  in  proportion  to 
the  risk  and  delay  of  payment.  It  is  also  proper  here  to  in- 
quire what  is  meant  by  the  word  "  interest."  At  common 
law,  interest  is  the  consideration  or  price  that  is  agreed  between 
parties,  to  be  paid  for  the  use  of  money  for  a  stipulated  time. 
At  common  law,  if  no  agreement  for  interest  be  made,  it  can 
not  be  recovered,  although  the  payment  of  the  debt  should  be 
unreasonably  delayed.  The  following  case  settles  this  princi- 

S'e,  to  wit:  The  case  of  Challie  v.  the  Duke  of  York; 
.  B.  Sittings  after  Easter  Term,  46,  Geo.  3d,  at  Weston, 
MSS.,  which  was  an  action  of  assumpsit  for  wine  sold  and  de- 
livered, and  for  money  due  on  an  account  stated.  On  the  trial, 
it  was  proved  that  the  wine  was  delivered  in  the  year  1799, 
and  in  the  year  1800  the  account  was  stated  and  settled  by  an 
agent  of  the  duke,  and  the  sum  of  £300  was  admitted  to  be 
due  to  the  plaintiff.  Upon  this  evidence  the  counsel  for  the 
plaintiff  claimed  interest  upon  this  sum  from  the  time  of  the 
settlement  of  the  account  to  the  day  on  which  the  plaintiff 
would  be  entitled  to  final  judgment;  and  in  support  of  this 
claim  a  case  in  3d  Wilson's  R.  205,  was  cited.  But  Lord 
Elienborough,  Ch.  J.,  before  whom  the  case  was  tried,  said, 
"Interest  is  never  allowed  for  goods  sold,  or  on  an 
account  stated,  except  there  be  an  ex  press  *agreement,  [*70] 
or  the  money  is  to  be  paid  on  a  particular  day  ;  and  I 
believe  the  case  cited  has  never  been  acted  upon."  (  2  Comyi 
on  Cont.  206,  note.) 

This  case,  decided  by  Lord  Elienborough,  is  precisely  analo- 
gous to  county  orders.  These  orders  are  a  mere  liquidation 
of  the  sum  due,  on  a  settlement  of  accounts  against  the  county, 
but  without  fixing  any  time  for  payment.  They  are,  there- 
fore, only  to  be  considered  as  an  authority  for  the  holder  to 
receive  the  money  whenever  it  is  in  the  county  treasury. 
To  remedy  this  defect  of  the  common  law,  interest  is  given  by 
statute  in  certain  specified  cases,  from  the  time  that  the  debt 
becomes  due,  until  payment  is  actually  made.  Hence  statute 

51 


70      •  VANDALIA. 


County  of  Madison  v.  Bartlett.    The  People  v.  Bartlett. 

interest  may  properly  be  defined  to  be  the  legal  damages  or 
penalty  for  the  unjust  detention  of  money. 

From  from  this  view  the  subject,  it  will  appear  that  in  the 
greater  part  of  the  cases  where  counties  contract  debts  and 
issue  the  their  orders  for  payment  or  compensation,  the  probabil- 
ity of  delay  or  uncertaninty  in  the  time  of  payment  has  been 
estimated  in  the  enchanced  price  agreed  on  for  the  services, 
work  or  materials  contracted  for.  In  all  such  cases,  then,  it 
would  be  manifesstly  improper  to  allow  interest ;  for  interest 
by  statute  is  allowed  as  damages  for  the  unjust  detention  of 
money  ;  and  here  these  damages  have  been  considered  by  the 
parties  in  the  extra  price  agreed  on.  But  as  it  is  not  in  the 
power  of  this  Court  to  discriminate  between  the  cases  where 
the  order  was  drawn  for  services  to  which  the  law  affixed  a 
stipulated  price,  and  where  the  county  contracted  with  individ- 
uals upon  such  terms  as  could  be  agreed  upon',  it  becomes  the 
duty  of  the  Court  to  decide  this  question  upon  legal  principles. 
It  is,  however,  to  be  regretted,  that  the  Court,  in  their  re- 
searches, have  been  able  to  find  but  one  adjudged  case  that 
is  in  point.  It  is  true  that  some  cases  were  referred  to  in 
the  argument  as  authorities,  to  show  that  in  some  of  the 
States  interest  had  been  allowed  against  the  State.  One  of 
these  cases  was  for  money  lent  the  State,  on  an  express  con- 
tract to  pay  interest ;  another  was  to  recover  from  the  State, 
on  a  breach  of  warranty  contained  in  a  deed,  and  was  decided 
upon  principles  applicable  to  that  description  of  cases.  In  the 
third  case,  the  facts  are  too  loosely  stated  to  furnish  us  with 
the  reasons  of  the  Court  for  allowing  interest ;  consequently, 
these  authorities  can  have  no  application  here.  This  dearth 
of  analogous  adjudged  cases  renders  it  the  duty  of  the  Court 
to  apply  such  general  principles  to  the  case  as  they  shall  deem 
apposite. 

It  is  a  principle  of  the  common  law,  that  the  government, 
and  by  parity  of  reasoning,  a  county,  can  not  be  guilty  of 
laches.  It  is  also  wrell  settled  that  a  State  is  not  barred  by  a 
statute  of  limitations,  unless  expressly  named.  Interest  is  not 
given  by  the  common  law,  for  a  failure  to  pay  money 
[*71]  when  it  is  due.  *unless  the  parties  have  so  agreed,  and 
is  only  allowed  by  statute  when  the  party  neglects  to 
pay  at  the  time  stipulated,  and  is  then  given,  in  the  nature  of 
a  penalty  for  the  violation  of  a  contract.  (3  Atkins,  636.)  Apply 
these  principles  to  the  question  under  consideration.  The  law 
does  not  impute  laches,  or  even  improper  conduct,  to  a  State 
or  county,  and  hence  it  will  not  presume  that  the  county  has 
not  done  everything  within  its  power  to  enable  itself  to  comply 
with  its  contracts  and  duties.  Nor  will  the  law  inflict  a 

62 


DECEMBER  TERM,  1832.  71 

County  of  Madison  v,  Bartlett.    The  People  «?.  Bartlett. 

penalty,  or  give  damages,  against  a  county  for  not  paying  its 
debts  when  it  is  manifestly  out  of  its  power  to  do  so.  Coun- 
ties are  limited  corporations,  and  can  only  levy  a  tax  to  a  lim- 
ited amount.  When,  the  law  gives  a  penalty  or  damages  against 
a  corporation,  or  even  against  an  individual,  for  the  non-per- 
formance of  a  given  action  or  duty,  it  is  done  to  stimulate  and 
quicken  the  performance  of  a  reasonable  and  possible  thing. 
The  law  never  gives  a  penalty,  or  even  damages,  for  the  non- 
performance  of  impossibilities.  Again,  the  statute  of  this  State, 
which  allows  interest  to  creditors  "  for  all  moneys  after  they 
become  due,"  does  not  by  name  include  the  State  or  counties. 
From  this  omission,  is  it  not  fairly  inferable,  that  had  the 
legislature  intended  to  compel  the  State  or  counties  to  pay  in- 
terest where  they  have  not  contracted  to  do  so,  that  they  would 
have  been  specially  named  ?  This  inference  is  strongly  sup- 
ported by  the  fact  that  the  legislature,  in  1819,  passed  a  statute 
requiring  interest  to  be  ]  aid  on  auditor's  warrants.  If  au- 
ditor's warrants  bore  interest  by  the  general  statute  regulating 
interest,  this  special  act  would  have  been  unnecessary.  The 
general  practice  of  the  community  is  also  some  evidence  of 
what  the  law  is  on  a  given  subject.  Has  interest,  then,  been 
generally  allowed  on  county  orders?  We  understand  not. 
And  it  appears  from  the  agreed  cases,  that  on  the  orders  re- 
ceived by  the  sheriff,  of  the  people  in  payment  of  taxes,  (which 
by  law  he  was  compelled  to  put  down  in  a  tabular  form,  and  to 
pay  the  identical  orders  so  received  into  the  county  treasury,) 
the  sheriff  did  not  allow  interest  to  the  persons  of  whom  he 
received  them,  nor  did  he  claim  it  of  the  treasurer.  Is  not 
here  strong  evidence,  not  only  of  the  understanding  of  the 
people  that  these  orders  did  not  bear  interest,  but  an  implied 
admission  by  the  treasurer  and  sheriff  that  the  law  did  not 
allow  it.  If  the  law  had  allowed  interest  on  these  orders  it  was 
the  duty  of  the  sheriff  to  have  allowed  it  to  the  taxpayers. 
The  only  adjudged  case,  analogous  to  the  present  one,  that  is 
recollected  by  the  Court,  is  the  case  of  Beaird  v.  The  Treasurer 
of  this  State,  decided  at  the  June  term  of  this  Court,  1825.  In 
that  case  Beaird  applied  to  the  Court  for  a  mandamus  to  the 
treasurer,  requiring  him  to  pay  interest  on  auditor's 
warrants,  which  motion  was  refused  upon  *  the  prin-  [*72] 
ciples  above 'laid  down,  that  the  State  was  not  bound 
to  pay  interest,  unless  in  cases  where  she  had  contracted  to 
do  so.  From  the  best  consideration  that  we  have  been  able  to 
give  this  subject,  we  can  come  to  no  other  conclusion  than 
that  a  county  is  not  bound  to  pay  interest  on  county  orders,  in 
the  absence  of  an  express  contract  to  pay  it.  The  Court,  in 
coming  to  this  conclusion,  do  not  intend  to  controvert  the  posi- 

63 


VANDALIA. 


County  of  Madison  r.  Bartlett.    The  People  t>.  Bartlett. 

tion,  as  a  general  mle,  that  a  party  is  bound,  in  conscience,  to 
pay  interest  whenever  he  withholds  payment  of  a  liquidated 
sum  of  money  after  it  becomes  due  ;  but  insist  that  the  rule, 
for  the  reasons  before  given,  does  not  apply  to  the  State  or 
either  of  its  counties.  It  might  also  with  propriety  be  insisted, 
that  the  financial  means  of  the  respective  counties  to  discharge 
their  contracts  were  or  could  have  been  known  by  those  per- 
sons, who,  either  as  officers  or  individuals,  became  creditors  to 
the  county.  They  may  therefore  be  presumed  to  have  con- 
sented to  receive  the  payment  of  their  claims,  whenever  the 
revenues  of  the  county  would  enable  it  to  pay  its  debts.  If 
this  is  a  reasonable  presumption,  and  it  seems  to  be,  then  the 
time  of  payment  of  these  county  orders  did  not  arrive  until 
there  was  money  in  the  treasury  to  pay  them ;  and  provision  is 
made  by  statute  to  pay  orders  according  to  their  seniority. 

The  second  question  presented  for  our  consideration  is 
whether  Bartlett  was  justifiable  in  allowing  to  the  sheriff  the 
advance  he  did,  on  the  equivalent  orders.  In  order  fully  to 
understand  the  effect  of  the  settlement  made  by  these  officers, 
I  will  take  the  first  order  mentioned  in  exhibit  A,  and  made 
part  of  the  agreed  case.  The  order  was  issued  at  the  June 
term,  1825,  for  $16.50,  equivalent  to  $49.50;  interest  on  the 
equivalent,  $14.10,  making  $63.60.  Here,  then,  is  a  county 
order,  issued  in  June,  1825,  for  $16.50,  converted  by  this 
magical  word  "  equivalent,"  within  five  years,  to  the  sum  of 
$63.60.  Can  it  for  a  moment  be  supposed  that  the  commis- 
sioners for  the  county  of  Madison  contemplated  binding  their 
county  to  pay  such  an  enormous  advance  on  so  small  an 
amount?  The  very  statement  of  the  case  is  sufficient  to  show 
the  absurdity  of  such  a  supposition;  and  even  if  they  had 
made  such  a  contract,  it  would  have  been  so  improvident  an 
act  on  the  part  of  the  county  that  a  court  of  equity  would 
have  set  it  aside.  But  the  County  Court  made  no  such  con- 
tract as  to  justify  the  allowance  made  by  the  treasurer  to  the 
sheriff.  The  order  simply  means,  that  when  it  is  presented 
for  payment,  if  the  treasurer  is  under  the  necessity  of  paying 
it  in  State  paper,  then  he  shall  pay  the  State  paper  to  the 
holder  of  the  order,  at  the  market  price  of  State  paper.  It 
was  optional  with  the  county  either  to  pay  the  $16.50  in 
specie,  or  if  the  amount  was  paid  in  a  depreciated  currency, 
then  that  currency  was  to  be  paid  at  such  a  rate  as  to 
[*73]  make  it  equivalent  to  specie.  If  A  ^execute  his  note 
for  one  hundred  State  paper  dollars,  and  he  is  sued  on 
it,  all  thatca  n  be  recovered  is  the  value  of  one  hundred  State 
paper  dollars  when  the  note  becomes  due,  and  interest  on  that 
value  till  judgment.  Such  have  been  the  uniform  decisions 

54 


DECEMBER  TEEM,  1832.  73 

Ross  and  Ross  v.  Redclick. 

of  the  Circuit  Courts  upon  this  subject,  and  the  correctness  of 
the  decisions  have  never  been  questioned.  That  the  real  amount 
mentioned  in  these  orders  could  only  be  recovered  seems  so 
clear,  that  it  would  be  a  waste  of  time  to  consider  the  ques- 
tion any  further. 

The  Court,  therefore,  are  of  opinion  that  in  the  case  of  The 
People  for  the  use  of  Madison  County,  they  are  entitled  to 
have  the  judgment  below  reversed,  and  recover  against  Bart- 
lett  the  sum  of  seven  hundred  and  ninety  dollars,  with  costs, 
and  that  the  judgment  in  the  case  of  Madison  County  v.  JBart- 
lett,  be  also  reversed  with  costs,  and  that  the  causes  be  remanded 
to  the  Madison  Circuit  Court  for  judgment,  according  to  the 
stipulations  of  the  agreed  cases. 

Judgment  reversed. 

SMITH,  J.,  dissented. 


JOHN  Ross  and  JOB  Ross,  plaintiffs  in  error,  v.  GEORGE 
REDDICK,  defendant  in  error. 

Error  to  Peoria. 

EVIDENCE — JUDICIAL  NOTICE  OP  STATUTES. — Statutes  defining  the 
boundaries  of  counties  are  public  acts,  and  courts  are  bound  judicially  to 
take  notice  of  them. 

TKESPASS — PROOF. — In  an  action  of  trespass  quare  clausum  fregit, 
proof  that  the  trespass  was  committed  upon  the  premises  described  in  the 
declaration,  by  the  number  of  the  section,  township  and  range  (the  said 
premises  being  in  the  proper  count}-),  is  sufficient  without  evidence  that 
the  premises  are  situated  in  the  county  where  the  action  is  brought. 

OFFICIAL  CERTIFICATE  AS  EVIDENCE. — The  official  certificate  of  the  reg- 
ister of  a  land  office,  to  any  fact  on  record  in  his  office,  is  competent  evidence 
of  such  fact. 

PLEADING — WAIVER. — If  one  of  several  pleas  be  not  answered,  and  the 
parties  go  to  trial  without  any  objection  on  the  part  of  the  defendant,  the  ir- 
regularity is  waived. 

THIS  cause  was  tried  before  the  Hon.  Richard  M.  Young 
and  a  jury,  at  the  September  term,  1832,  of  the  Peoria  Circuit 
Court. 

On  the  trial  in  the  Court  below,  the  following  certificate  was 
admitted  as  evidence  on  the  part  of  the  plaintiff,  though  ob- 
jected to  by  the  defendants,  and  its  admission  is  one  of  the  er- 
rors assigned : 

CITED:  Effect  of  trial  with  plea  unanswered;  21  111.  193;  70  111.  43.  De- 
fect of  issues  cured:  21  111.  560;  71  111.  281.  Irregularity  waived:  22 
111.  217;  HI.  166. 

55 


73  VANDALIA. 


Ross  and  Ross  v.  Reddick. 


'"  LAND  OFFICE,  QCINCY,  ILLINOIS,  Aug.  2,  1832. 
"I  do  certify  that  George  Reddick,  of  Peoria  county,  Illinois, 
did  on  this  day,  in  this  onice,  prove  a  right  of  pre-emption  to 
the  east  half  of  the  S.  W.  Qr.  Sec.  27,  T.  10,  K,  R.  8, 
f*74]     E.  4,  ^principal  meridian,  under  the   provisions  of  the 
act  of  Congress  of  the  5th  of  April,  1832. 

"  SAML.  ALEXANDER,  Register" 

Judgment  was  rendered  for  the  plaintiff  in  the  Court  below, 
for  $8.81f  ,  and  costs. 


M.  McCoNNELL,  for  the  plaintiffs  in  error,  cited  Stat.  1827, 
199  (R.  L.  280  ;  Gale's  Stat.  287)  ;  Stat.  1825,  85  ;  Laws  of 
U.  S.  1373,  §  3. 

L.  BIGELOW,  for  the  defendant  in  error,  cited  Acts  1825,  85  ; 
1  Blac.  Com.  85,  86  ;  1  Stark.  Ev.  162-3  ;  1  Chit.  Plead.  159, 
163,  197,  201,  360,  438,  440  ;  Bac.  Abr.  Evidence,  F,  Statute 
L.  ;  Commonwealth  v.  Ink.  Springfield,  7  Mass.  9  ;  Ports- 
mouth Livery  Co.  v.  Watson  et  al.,  10  Mass.  91  ;  Acts 
1827,  199  ;  Cutts  et  al.  v.  Spring  et  al.,  15  Mass.  135  ;  3 
Stark.  Ev.  1436,  et  seq.  ;  Brazzle  et  al.  v.  Usher,  Breese,  14  ; 
Clap  v.  Draper,  4  Mass.  266  ;  Rehoboth  v.  Hunt,  1  Pick.  224. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court  : 

This  was  an  action  of  trespass  guare  clausum  fregit,  brought 
by  the  defendant  in  error  against  the  plaintiffs  in  error,  before 
the  Circuit  Court  of  Peoria  county.  The  land  that  the  trespass 
was  committed  on  is  described  in  the  declaration  -by  the  num- 
ber of  the  section,  township  and  range.  On  the  trial  in  the 
Court  below,  the  plaintiff  proved  that  the  trespasses  complained 
of  were  committed  on  the  tract  of  land  described  in  the  decla- 
ration, but  introduced  no  evidence  to  show  that  the  land  was 
situated  in  the  county  of  Peoria,  The  county  of  Peoria  was 
formed  by  an  act  of  the  legislature,  passed  January  13,  1825. 
(Acts  of  1825,  85,  86.) 

In  that  act  the  limits  of  Peoria  county  are  formed  and  de- 
scribed by  reference  to  the  lines  of  the  public  surveys.  The 
statute  defining  the  boundary  of  the  county  is  a  public  one,  and 
the  Courts  are  bound  judicially  to  notice  it. 

The  official  certificate  of  the  register  of  a  land  office,  to  any 
fact  on  record  in  his  office,  is  competent  evidence  of  such  fact, 
and  is  made  so  by  the  act  of  1827.  (Acts  of  1827,  199  ;  R.  L. 
280  ;  Gale's  Stat.  287.) 

The  certificate  of  the  register  of  the  land  office  went  to 
show  the  right  of  pre-emption  in  the  plaintiff  to  the  land  in 
question.  It  appears  that  issue  was  joined  upon  two  of  the 


DECEMBER  TEEM,  1832.  74 

Christy  v.  McBride. 

pleas  filed  by  the  defendants,  but  the  other  plea  was  not  joined. 
If   several   pleas  be   pleaded,  one  of  which  is  not  answered, 
— and  particularly  where  the  matter  may  be  given  in  evidence 
under  the  general  issue— and  the  parties  go  to  trial  without 
any  objection  on  the  part  of  the  defendant,  that  such  plea  re- 
mains unanswered,  it  will  be  considered  as  waived,  or  the  irreg- 
ularity will  be  cured  by  the  verdict  of  the  jury.     The 
Court  is  therefore  of  opinion  *that  the  judgment   of     [*75] 
the  Circuit  Court  of  Peoria  county  be  affirmed  with 
costs. 

Judgment  affirmed. 


HUGH  CHRISTY,  and  MORNING,  his  wife,  appellants,  v. 
WILLIAM  H.  McBRiDE,  administrator  of  Samuel 
Wilson,  deceased,  appellee. 

Appeal  from  Randolph. 

LIABILITY  OF  ADMINISTRATOR  FOR  Loss. — If  an  administrator  act  Hon- 
estly and  prudently,  though  there  be  a  loss  to,  or  a  total  diminution  of.  the 
intestate's  estate,  he  will  not  be  liable. 

Where  M.,  an  administrator  in  Illinois,  employed  an  agent  in  Virginia 
to  collect  a  demand  due  to  his  intestate's  estate  from  a  resident  in  Virginia, 
and  the  agent  collected  the  money  and  appropriated  the  same  to  his  own 
use,  but  never  accounted  for  it  to  M. :  Held,  that  as  M.  had  been  guilty  of 
no  misconduct  and  had  acted  in  good  faith,  he  was  not  liable  for  the  loss  of 
the  money. 

Quere.  Is  an  administrator  in  this  State  bound  to  collect  demands  due 
his  intestate's  estate  from  residents  of  other  States. 

THIS  cause  was  originally  instituted  in  the  Court  of  Probate 
of  Randolj3h  county,  by  Christy  and  wife,  in  her  right  as  one 
of  the  heirs  at  law  and  distributee  of  Samuel  Wilson,  deceased, 
against  McBride,  administrator  of  the  estate  of  said  Wilson,  to 
recover  of  him  her  distributive  share  of  said  estate,  after  all 
legal  demands  should  be  satisfied.  On  the  trial  before  the 
Court  of  Probate,  the  administrator  exhibited  his  account  cur- 
rent, showing  a  balance  in  his  hands  of  $190. 63f  belonging  to 
the  heirs.  The  plaintiffs  then  proved  that  in  addition  to  said 
balance  of  $190.63f,  McBride,  as  administrator,  had  obtained 
three  notes  made  to  said  Wilson,  the  intestate,  in  his  lifetime, 
by  one  John  Kingley,  of  Washington  county,  Virginia,  and 
amounting  with  interest  to  more  than  $800;  and  that  said 

CITED  :  10  Bradw.  133.  See  People  r.  Peck,  3  Scam.  119;  Judy  v.  O'Kelly, 
11  111.  211;  U.  S.  ».  Coxe,  18  How.  100. 

67 


75  VANDALIA. 


Christy  ».  McBride. 


McBride,  through  his  agent,  one  Charles  Tate,  had  collected 
said  notes;  and  that  said  Tate  had  appropriated  the  money  to 
his  own  use;  and  that  he,  Tate,  was  insolvent  and  unable  to 
pay  the  amount  to  McBride.  That  McBride  acted  honestly 
and  in  good  faith  in  sending  said  notes  to  said  Tate;  and  be- 
fore he  sent  them  he  consulted  with  William  C.  Greenup, 
clerk  of  the  County  Commissioners'  Court  of  Randolph 
county,  and  was  by  him  advised  to  send  the  notes  to  Tate  for 
collection,  but  that  he  had  no  personal  knowledge  of  said  Tate. 
That  Tate,  when  the  notes  were  sent  to  him,  or  about  the  time, 
was  reputed  to  be  in  solvent  circumstances,  and  had  been,  or 
was  then,  sheriff  of  Washington  county.  The  Court  of  Pro- 
bate, on  this  state  of  facts,  decided  that  McBride  was 
[*76]  not  liable  for  any  part  of  this  money  so  *collected  by 
Tate,  to  the  heirs  and  distributees  of  said  Wilson,  de- 
ceased. To  which  opinion  a  bill  of  exceptions  was  tendered 
by  said  Christy  and  wife,  and  signed,  and  an  appeal  taken  to 
the  Circuit  Court  of  Randolph  county,  where  said  judgment 
of  the  Court  of  Probate  was  affirmed,  and  a  bill  of  exceptions 
tendered  and  signed,  and  the  case  brought  to  this  Court  by 
appeal.  The  cause  was  heard  in  the  Circuit  Court  before  the 
Hon.  Theophilus  W.  Smith,  at  the  September  term,  1831. 

S.  BREESE  and  D.  BLACKWELL,  for  the  appellants,  contended : 

1.  Every  person  acting  in  a  fiduciary  character  is  responsi- 
ble to  his  cestui  que  trust  for  that  which  may  be  committed  to 
his  care  by  law,  and  nothing  but  inevitable  accident  will  excuse 
him.     5  ^esey,  Jr.,  794,  800;  4  Dane's  Abr.  270,  271. 

2.  An  administrator  is  responsible  if  his  agent  embezzle 
the  assets  of  the  estate.     1  Dane's  Abr.  590,  Art.  16;  6  Mod. 
93;  Toller's  Exrs.  426. 

3.  Upon  general  principles,  the  principal  is  responsible  for 
the  acts  of  his  agent.     Livermore  on  Agency,  passim. 

4.  The  appropriation  of  money  collected  by  the  agent  of 
the  administrator  is  a  collection  and  appropriation  by  the  ad- 
ministrator himself,  upon  the  maxim  qui  facit  per  alium, 
fadt  per  se. 

5.  The  administrator  would  be  liable,  without  doubt,  if  he 
had  gotten  this  money  into  his  own  possession,  and  the  case  is 
not  altered  by  its  being  in  the  possession  of  a  person  of  his 
own  selection  who  proves  dishonest.     Coxe's  Dig.  48,  §  27. 

6.  The  case  shows  that  McBride  did  not  use  due  caution  in 
the  selection  of  his  agent,  nor  did  he  select  one  whose  business 
it  is  to  collect  notes,  and  he  is  therefore  liable  for  such  want 
of  caution.     Coxe's  Dig.  318,  §  27. 

7.  The  loss  of  the  money  having  happened  by  the  act  of 

58 


DECEMBEE  TEEM,  1832.  76 


Christy  v.  McBride. 


the  administrator,  who  ought  to  have  used  more  than  ordinary 
caution,  it  is  more  conformable  to  the  principles  of  right  and 
justice  that  he  should  lose  than  that  the  heirs  and  distribu- 
tees should  incur  a  loss,  though  he  may  not  have  been  guilty 
of  fraud.  Coxe's  Dig.  316,  §  6,  7,  8,  etc. ;  Breese,  113,  Dun- 
can  v.  Morison  and  Duncan. 

8.  The   administrator  by  trusting  Tate  took  security  in- 
ferior to  Kingley,  .the  maker  of  the  notes,  and  having  thereby 
brought  a  loss  on  the  estate  he  is  liable.     Hunter  v.  Bryant, 
2  Wheat.  32;  Coxe's  Dig.  13. 

9.  The  evidence  shows  that  McBride  did  not  take  the  same 
care  or  use  the  same  caution,  in  regard  to  the  notes,   that  a 
moderately  careful  man  takes  of  his  own  affairs,  and   he   is 
therefore  liable  for  ordinary  neglect.     Coxe's  Dig.  80,  Bail- 
ment', Jones  on  Bailment,  68,  69,  168. 

10.  The  only  cases   known  to  the  law,  where  an 
executor  or  Administrator  is  discharged  for  losses,  are,     [*77] 
where  he  may  be  robbed,  or  where  the  stock  falls  or 
funds  fail  in  which  lie,  with  good  faith,  has  invested  the  funds 
of  the  estate,  or  where,  acting  in  compliance  with  law,  a  loss 
inevitably  hap]  ens.     1  Dane's  Abr.  270,  271;  4  Games'  Cas.  in 
Error,  96;  5  Vesey,  Jr.,  794,  800. 

11.  The   loss  thus  incurred  by  the  administrator  fixes   a 
Devastavit  upon  him,  for  which  he  is  chargeable. 

D.  J.  BAKEK  and  HALL,  for  the  appellee,  contended: 

1.  ''Where  there  is  manifest  fidelity  and  ordinary  diligence 
displayed,  courts  will  reluctantly  enforce  the  rigid  rules  of 
law.  "  2  Wheaton's  Eep.  32.  "  An  administrator  is  not  an- 
swerable if  he  lend  money  on  security,  good  at  the  time,  if  it 
fail,  or  vest  it  in  the  funds,  and  they  fail."  "If  rent  be  due  on 
a  lease,  and  the  tenant  become  insolvent,  and  the  executor  re- 
lease the  rent,  and  give  him  a  sum  of  money  to  quit  possession, 
and  in  all  this,  evidently  acts  for  the  benefit  of  the  estate,  he 
shall  be  allowed  both.^'  "The  principle  of  this  last  case  will 
be  found  to  apply  to  a  very  great  number  of  cases  in  which 
the  executor  acts  honestly  and  prudently,  though  there  be  a 
loss  to,  or  diminution  of,  the  testator's  estate  or  rights."  See 
1  Dane's  Abr.  590,  and  the  authorities  there  referred  to. 

"If  an  executor  lend  money  on  real  security,  which  at  the  time 
there  was  no  reason  to  suspect,  and  afterward  such  security 
prove  bad,  he  shall  not  be  chargeable  with  any  loss  any  more 
than  he  would  have  been  entitled  to  the  produce  of  it,  if  it 
had  been  sufficient."  Toller's  Exrs.  481 ;  1  P.  Win.  141. 

''  So  where  A,  an  executor,  paid  the  assets  into  the  hands 
of  B,  his  co-executor,  with  whom  the  testator  was  wont  to 

59 


77  VANDALIA. 


Christy  v.  McBride. 


keep  cash  as  his  banker,  on  failure  of  B,  the  Court  held  that 
A  ought  not  to  suffer  for  having  trusted  him  whom  the  testa- 
tor trusted  in  his  lifetime,  and  at  his  death  appointed  one  of 
hisexecutors."  Ibid.  "Generally speaking, although  if  an  exec- 
utor release  or  compound  a  debt,  he  shall  be  charged,  yet  if 
he  appear  to  have  acted  for  the  benefit  of  the  estate,  he  shall 
not  be  charged."  Toller's  Exrs.  482;  3  P.  Win.  381. 

"  So,  a  co-executor  who  proved,  but  never  acted,  having  re- 
ceived a  bill  by  post,  on  account  of  the  estate,  and  transmitted 
it  immediately  to  the  acting  executor,  was  held  not  to  be  re- 
s*-onsible  for  the  administration  of  the  property."  Toller's 
Exis.  486. 

As  to  an  executor's  vesting  money  in  the  funds,  or  loaning 
it  on  security  deemed  sufficient,  and  losses  accruing  to  the  es- 
tate thereby,  with  which  he  is  not  chargeable,  see  Toller's 
Exrs.  428.  "He  has  an  honest  discretion  to  call  in  a  debt  bear- 
ing interest,  if  he  conceives  it  to  be  in  hazard."  Hid. 
[*78]  "Nor  is  an  ^administrator  bound  to  plead  the  statute  of 
limitations  in  bar  of  a  demand  against  the  intes- 
tate." Toller,  429. 

2.  Administrations,  though  they  may  be  trusts  coupled 
with  an  interest,  are  in  some  sense  agencies,  and  are  more  like 
other  agencies  under  our  laws  than  they  were  formerly  under 
the  laws  of  England,  or  now  are.  These  trusts  for  the  pur- 
poses of  argument,  and  so  far  as  the  present  case  is  considered, 
may  be  regarded  as  agencies  with  discretionary  power.  The 
law  is,  that  "  if  a  discretionary  power  be  allowed  to  an  agent 
he  is  bound  to  act  according  to  the  best  of  his  judgment  for 
the  benefit  of  his  employer."  1  Wash.  C.  C.  E.  455. 

"  A  factor  is  bound  to  ordinary  diligence  in  relation  to  the 
property  confided  to  him;  where  his  orders  leave  the  manage- 
ment of  the  property  to  his  discretion,  he  is  bound  only  to 
good  faith  and  reasonable  conduct."  2  Gallis.  13. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
In  this  case  the  only  question  to  be  determined  is  the  liabil- 
ity of  the  administrator  for  the  amount  of  the  notes  collected 
of  the  debtor  of  the  intestate,  (who  resided  in  Virginia,) 
through  his  agent,  and  the  misapplication  of  those  funds  by  the 
agent,  after  collection.  It  is  contended  by  the  appellants,  that 
by  law  an  administrator  is  responsible  if  his  agent  embezzle 
the  assets  of  the  estate,  and  that  the  funds  being  used  by 
Tate,  who  afterward  became  insolvent,  is  equivalent  to  an 
embezzlement,  and  that  therefore  the  administrator,  in  the 
present  case,  is  liable.  The  case  cited  in  support  of  this  prin- 
ciple, and  referred  to  in  Toller,  and  in  Dane's  Abridgment,  is 

60 


DECEMBER  TERM,  1832.  78 

Christy  v .  McBride. 

not  borne  out  in  the  case  in  6  Modern,  to  which  they  refer. 
The  only  question  decided  by  the  Court,  and  the  only  one  be- 
fore them,  was  a  question  of  costs ;  and  as  the  party  might  in 
that  case,  have  sued,  without  describing  himself  as  administra- 
tor, it  was  held  he  should  pay  costs.  It  is  admitted,  and  the 
facts  in  this  case  show,  that  the  administrator  has  acted  pru- 
dent'y  and  honestly ;  that  his  agent  at  the  time  he  was  em- 
ployed, was  a  person  of  reputation  and  property ;  and  although 
he  became  afterward  insolvent,  and  used  the  money  collected, 
there  is  no  evidence  of  negligence  on  the  part  of  the  adminis- 
trator in  the  use  of  the  proper  means  to  collect  the  money  of 
his  agent.  If  an  administrator  has  acted  for  the  benefit  of  the 
estate,  used  proper  diligence,  and  acted  with  ordinary  care  and 
circumspection  in  the  discharge  of  his  trust,  he  ought  not  to  be 
held  answerable  for  losses  which  could  not  have  been  foreseen, 
and  which  ordinary  precaution  may  not  guard  against.  The 
general  principle  which  seems  to  run  through  all  the  author- 
ities, as  to  his  liability,  recognize  the  doctrine  that  if  he  acts 
honestly  and  prudently,  though  there  be  a  loss  to,  or  diminu- 
tion of,  the  testator's  estate  or  rights,  lie  will  not  be  liable.  (1 
Dane's  Abridg.  590 ;  Toller's  Ex.  481 ;  1  F.  Wins.  141 ;  3.  P. 
Wins.  381.) 

*  Where  there  is  manifest  fidelity  and  ordinary  dili-  [*79] 
gence  displayed,  the  rigid  rules  of  law  will  be  reluc- 
tantly enforced.  (2  Wheat.  32.)  Another  view  might  be 
taken  of  the  case  ;  the  administrator  could  not,  in  his  fiduciary 
character,  have  sued  these  notes  unless  he  had  taken  out  let- 
ters of  administration  in  Virginia.  It  nowhere  appears  that 
he  did  so ;  but  the  case  shows,  on  the  contrary,  that  the  debt 
must  have  been  collected  in  the  name  of  the  agent.  Until  the 
administrator  had  received  the  money,  could  it  be  considered 
as  assets  in  his  hands?  and  is  he  chargeable  at  all,  in  his  repre- 
sentative character,  until  this  appears?  Whether  he  would 
be  personally  liable  under  a  supposed  interference  with  the 
collection  of  debts  not  warranted  by  his  character  of  adminis- 
trator, out  of  this  State,  it  is  not  proper  nqw  to  determine. 
But  we  very  much  doubt  whether  he  was  legally  bound  to 
have  made  the  collection  of  the  notes  in  Virginia ;  and  if  not 
compellable  so  to  do,  may  not  the  parties,  in  the  present  in- 
stance, have  mistaken  their  remedy? 

On  a  review  of  the  whole  case,  and  considering  the  powers 
of  the  Probate  Court  to  adjust  settlements  like  the  ]  resent 
upon  the  broad  principles  of  equity,  we  are  of  opinion  that 
the  Circuit  Court  did  not  err  in  affirming  the  judgment  of  the 
Court  of  Probate,  and  that  the  judgment  of  the  Circuit  Court 
be  affirmed  with  costs.  Judgment  affirm.ed. 

61 


DECISIONS 


SUPREME  COURT 


STATE  OF  ILLINOIS, 


DELIVERED 


DECEMBER  TERM,  1833,  AT  VANDALIA. 

LEWIS  PANKEY,  plaintiff  in  error,  v.  THE  PEOPLE   OF 
THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Johnson. 

PEK.rrav — DEFINITION. — Perjury  consists  in  falsely  swearing  to  a  fact 
material  to  the  point  in  issue,  before  a  tribunal  having  legal  authority  to 
inquuv  into  the  cause  or  matter  investigated. 

ILLEGAL  FEES — GRAXD  JUKY. — A  grand  jury  have  no  power  to  inquire 
wh"ther  an  officer  has  been  guilty  of  taking  illegal  fees  for  the  service  of 
process. 

W.  G.  GATEWOOD,  for  the  plaintiff  in  error. 

J.  SEMPLE,  Attorney  General,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  case  comes  before  the  Court  on  a  writ  of  error.  The 
plaintiff  in  error  was  indicted,  tried  and  convicted  on  a  charge 
of  perjury,  in  the  Circuit  Court  of  Pope  county.  A  new  trial 
was  afterward  awarded,  the  venue  in  the  case  changed  to  John- 
son county,  where  a  second  trial  and  conviction  was  had.  The 
plaintiff  in  error,  while  the  cause  was  pending  in  the  Circuit 
Court  of  Pope,  and  before  pleading  to  the  indictment,  inter- 
posed a  motion  to  quash  the  indictment,  which  was  overruled 

62 


DECEMBEE  TEEM,  1833.  80 

Pankey  v.  The  People  of  the  State  of  Illinois. 

by  the  Court ;  afterward  a  bill  of  exceptions  to  the  decision  of 
the  Johnson  Circuit  Court  was  taken  by  consent  of  parties, 
and  in  which  is  embodied  the  evidence  given  in  the  cause  on 
its  trial  in  the  Circuit  Court  of  Johnson  county. 

*The  indictment  avers,  that  at  a  regular  term  of  [*81] 
the  Circuit  Court  of  Pope  county,  before  the  grand 
jurors,  regularly  impaneled  and  sworn  to  inquire  in  and  for 
said  county,  a  certain  complaint  was  made  by  one  Lewis 
Pankey,  against  one  John  W.  Womack,  for  taking  illegal 
fees  as  a  constable,  in  order  to  found  an  indictment  against 
said  Womack,  as  a  constable  of  the  said  county,  to  be 
found  by  said  grand  jury;  and  that  the  said  Lewis  Pan- 
key,  being  of  lawful  age,  and  being  first  duly  sworn 
by  the  foreman  of  the  said  jury,  the  said  foreman  hav- 
ing lawful  authority  to  administer  the  oath  in  that  behalf, 
on  being  interrogated  of  and  concerning  the  taking  and  receiv- 
ing of  said  illegal  fees,  and  whether  the  services  for  which 
such  fees  were  taken  had  been  performed  at  the  request  and 
by  the  consent  of  the  said  Lewis  Pankey,  he,  the  said  Lewis, 
unlawfully  and  maliciously,  intending  to  induce  the  jurors  fco 
find  such  bill  of  indictment  against  the  said  Womack,  and  to 
injure  the  said  Womack,  did  falsely,  knowingly  and  corruptly, 
by  his  own  act  and  consent,  depose  and  give  in  evidence, 
among  other  things,  before  the  said  jurors,  in  substance  and 
to  the  effect  "  that  he,  the  said  Lewis  Pankey,  did  not  agree 
nor  give  orders  to  the  said  Womack,  constable  as  aforesaid,  to 
summon  a  jury  in  his  case  with  Daniel  Vineyard,  before  that 
time  tried,  nor  was  it  his,  the  said  Lewis  Pankey's,  wish,  to 
have  a  jury  to  try  it ; "  whereas  in  truth  and  in  fact  the  said 
Lewis  did  agree  and  give  orders  to  the  said  constable  to  sum- 
mon a  jury  in  his  case  with  Daniel  Vineyard,  and  was  anx- 
ious and  willing  that  his  said  case  should  be  tried  by  a  jury. 
It  further  avers  that  the  matter  thus  alleged  to  have  been 
sworn  to,  was  material  to  the  point  of  inquiry  in  issue  before 
the  grand  jury,  in  this,  that  if  the  said  Lewis  had  not  agreed 
or  given  orders  to  the  said  constable  to  summon  such  jury, 
then  the  said  Womack  was  guilty  of  taking  illegal  fees  from 
the  said  Lewis  ;  but  if  he  had  given  such  orders  and  agreed 
that  the  said  constable  should  summon  a  jury,  then  the  said 
constable  was  not,  and  had  not  been  guilty  of  taking  such 
illegal  fees. 

It  will  be  perceived  from  this  recital  of  the  averments  in  the 
indictment  and  assignment  of  the  perjury,  that  two  questions 
naturally  present  themselves  as  subjects  of  direct  inquiry,  and 
upon  which  the  correctness  of  the  decision  of  the  Circuit 
Court,  in  refusing  to  quash  the  indictment,  must  necessarily 

63 


81  VANDALIA. 


Pankey  v.  The  People  of  the  State  of  Illinois. 


depend.  Those  questions  are  whether  the  grand  jury  had 
any  legal  authority  to  institute  an  inquiry  and  examination 
into  the  act  of  Womack,  as  a  constable,  for  the  taking  of 
illegal  fees,  as  a  criminal  and  indictable  offense  ;  and  the  ma- 
teriality of  the  testimony  given  by  Pankey  before  the  grand 
jury  in  relation  to  the  inquiry  with  reference  to  the  alleged 
taking  of  such  illegal  fees. 

It  will  not  be  doubted  that  one  of  the  essential  ingredients 
necessary  to  constitute  legal  perjury,  is  that  the  tribunal 
[*82]  or  body  *before  whom  the  false  swearing  is  alleged  to 
have  been  committed,  must  have  legal  authority  and 
power  to  inquire  into  the  cause  or  matter  investigated. 
Apply  this  principle  then  to  the  case  before  us.  From 
whence  could  the  authority  of  the  grand  jury  be  de- 
duced to  institute  an  inquiry  into  an  officer's  taking  illegal 
fees  for  the  service  of  process  ?  It  is  not  a  criminal  act, 
nor  could  an  indictment  be  founded  thereon,  be  the  fact 
of  taking  illegal  fees  ever  so  clearly  established.  A  rem- 
edy has  been  provided  by  the  infliction  of  a  penalty  for 
such  acts  ;  but  the  modes  of  proceeding  to  enforce  such 
penalty  are  entirely  of  a  civil  nature.  How,  then,  could  the 
grand  jury  have  had  jurisdiction  over  the  subject-matter  of 
the  inquiry?  It  is  too  evident  to  doubt  that  it  was  a  subject 
of  inquiry  which  they  had  neither  the  rightful  authority  to 
examine,  nor  upon  which  to  found  an  indictment,  let  the  facts 
have  ever  so  clearly  established  the  actual  taking  of  illegal 
fees.  But  it  will  be  also  perceived  by  the  second  point,  the 
assignment  of  the  perjury  is  made  to  consist  in  falsely  stating 
that  Pankey  had  not  agreed  nor  given  orders  to  the  constable, 
Womack,  to  summon  a  jury  in  his  case  with  Daniel  Vineyard, 
before  that  time  tried,  nor  was  it  his,  the  said  Pankey's,  wish, 
to  have  a  jury. 

In  what  manner  could  it  possiWy  have  been  material  for 
Pankey  to  have  stated  whether  he  had  or  had  not  given  such 
orders  to  the  constable,  or  whether  he,  Pankey,  had  or  had  not 
wished  to  have  had  a  jury.  If  the  inquiry  in  the  case  of 
Pankey  with  Vineyard  was  a  legal  one  before  a  justice  of  the 
peace  having  a  right  to  try  the  controversy,  then  the  legality  of 
a  constable's  fees  could  in  no  way  defend  upon  a  request  to  the 
constate  to  summon  a  jury,  because  it  is  the  justice  of  the 
j  eace  who  alone  determines  the  issuing  of  the  venire,  which  is 
the  authority  for  the  constable  to  summon  a  jury.  Could  then 
this  inquiry  be  a  material  one  for  the  consideration  of  the 
grand  jury,  to  enable  them  to  determine  whether  the  constable 
had  or  had  not  been  guilty  of  taking  illegal  fees  ?  The  legal- 
ity or  illegality  must  alone  depend  on  the  fact,  whether  the 

61 


DECEMBEK  TEEM,  1833.  82 

People  of  the  State  of  Illinois  v.  Miller  and  Simms. 

justice  had  or  had  not  given  the  officer  authority  to  summon 
a  jury,  and  whether  or  not  such  services  had  been  rendered, 
and  the  fees  charged  and  received.  It  is  evident  that  the  facts 
charged  to  have  been  sworn  to  before  the  grand  jury,  were  in 
every  particular  immaterial  to  the  inquiry,  had  it  been  a 
proper  subject  of  investigation  before  it ;  and  although  they 
may  have  been  entirely  false,  still  it  could  not  have  been  the 
commission  of  legal  perjury,  because  of  its  immateriality. 

If  the  Court  were  to  look  into  the  bill  of  exceptions,  in  an 
examination  of  the  correctness  of  the  decision  made  on  the 
motion  to  quash  in  the  Circuit  Court,  which  would  be  clearly 
improper,  because  that  decision  is  to  be  alone  tested 
by  the  ^position  of  the  cause  as  it  then  stood,  it  would  [*83] 
then  perceive  that  the  case  with  "Vineyard  was  an 
arbitration  about  an  alleged  libel  before  a  justice  of  the  peace, 
who  had  not  the  slightest  jurisdiction  to  examine  into  it ;  and 
that,  consequently,  the  constable  could  have  had  no  legal  au- 
thority to  summon  a  jury  in  the  case,  and  might  well,  there- 
fore, have  been  guilty  of  charging  illegal  fees,  when  the  pro- 
ceedings before  the  magistrate  were  wholly  void. 

As  we  are  clearly  of  opinion  that  the  Circuit  Court  erred  in 
not  quashing  the  indictment,  for  the  reasons  stated  the  judg- 
ment of  the  Circuit  Court  of  Johnson  county  is  reversed,  and 
the  prisoner  is  to  be  discharged. 

Judgment  reversed. 


THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS,  for  the  use  of 
WILLIAM  LEE  D.  EWING,  plaintiffs  in  error,  v.  WILL- 
IAM MILLEK,  and  IGNATIUS  R.  SIMMS,  defendants  in 
error. 

Error  to  Morgan. 

EXECUTOR'S  BOND — SUIT  ON — LIES  AGAINST  WHOM — STATUTE. — For  a 
breach  in  the  condition  of  the  bond  of  an  executor,  an  action  may  be  main- 
tained against  any  oiie  or  more  of  the  obligors  in  such  bond.  The  common 
law  in  this  particular  is  changed  by  statute. 

It  is  not  necessary  to  establish  a  de.vastavit  previous  to  instituting  a  suit 
on  an  executor's  bond.  The  statute  has  dispensed  with  the  proof  of  a  devas- 
tarit. 

The  statute  of  wills  gives  an  action  against  the  obligors  in  an  executor's 
bond,  in  cases  of  neglect  or  refusal  to  comply  with  any  of  the  provisions  of 
the  law  governing  the  conduct  of  the  executor,  as  also  in  cases  where  one  or 
more  of  the  covenants  in  his  bond  are  violated. 

VOL.  1-6  66 


83  VANDALIA. 


People  of  the  State  of  Illinois  v.  Miller  and  Simms. 

THIS  was  an  action  of  covenant  commenced  in  the  Morgan 
Circuit  Court  by  the  plaintiffs  in  error  against  -the  defendants 
in  error  upon  an  executor's  bond. 

The  breaches  assigned  in  the  declaration,  are  as  follows: 

"And  the  said  People  say  that  the  said  William  Miller  has 
not  paid  the  judgment  aforesaid,  or  any  part  thereof,  to  the 
said  William  Lee  D.  Ewing,  although  often  requested  so  to 
do,  but  has  devastated  and  wasted  the  estate,  goods,  chattels 
and  effects  of  the  said  Benjamin  P.  Miller,  deceased,  of  whom 
he,  the  said  William,  was  executor  as  aforesaid. 

"And  the  said  People  aver  that  the  said  William  Miller  (and 
the  said  Si  in  ins)  have  otherwise  broken  their  covenants  and 
have  not  kept  and  performed  the  same  in  this,  that  the  said 
William  Miller  did  not  return  to  the  office  of  the  Court  of 
Probate  of  said  county  within  three  months  after  the  date  of 
his  letters  testamentary,  a  true  and  perfect  inventory 
[*S4Q  and  valuation  of  the  "personal  estate  of  the  said  Benja- 
min P.  Miller,  deceased,  neither  did  the  said  William 
Miller  return  to  the  said  office  of  the  Court  of  Probate  of  said 
county,  a  true  and  perfect  inventory  of  all  moneys,  judgments, 
bonds,  promissory  notes  and  open  accounts,  or  other  evidences 
of  debts  of  the  said  estate,  neither  has  the  said  William  Miller 
filed  in  the  said  probate  office  a  true  and  perfect  statement 
and  list  of  titles  to  estates  as  well  real  as  personal,  equitable  or 
legal,  neither  has  the  said  William  Miller  exhibited  to  the 
Court  of  Probate  and  filed  in  the  said  office  any  information 
or  statement  showing  the  kind,  quantity,  quality  or  value  of 
said  real  estate  as  by  the  laws  of  the  land  he,  the  said  William, 
as  executor,  was  bound  to  do,  but  he,  the  said  William  Miller, 
has  received  and  taken  possession  of  the  real  and  personal 
estate  of  the  said  Benjamin  P.  Miller,  deceased,  and  has  sold 
and  disposed  of  the  real  estate  of  the  said  estate  of  the  said 
Benjamin  P.  Miller,  deceased,  and  received  and  wasted  the 
proceeds  thereof,  and  has  failed  and  refused  to  pay  the  said 
William  Lee  D.  Ewing  the  amount  of  the  judgment  aforesaid, 
although  often  requested  so  to  do. 

"And  the  said  People  say  that  the  said  defendants  have  not 
kept  their  covenants  but  have  broken  the  same  in  this,  the  said 
William  Miller  did  not  as  executor  of  the  said  Benjamin  P. 
Miller,  deceased,  exhibit  to  the  said  Aaron  Wilson,  Judge  of 
the  Court  of  Probate  of  said  county,  at  the  first  term  of  said 
Court  of  Probate  which  was  in  session  after  the  expiration  of 
one  year  from  the  date  of  his  said  letters  testamentary,  a  true 
and  perfect  account  of  all  his  actings  and  doings  as  executor  as 
aforesaid,  and  then  and  there  proceed  to  settle  the  affairs  and 
business  of  said  estate,  as  by  his  bond  and  obligation  aforesaid 


DECEMBER  TERM,  1833.  84 

People  of  the  State  of  Illinois  v.  Miller  and  Simms, 

and  by  the  laws  of  the  State  of  Illinois  he  was  bound  to  do; 
but  although  twelve  months  have  long  since  expired  since  the 
appointment  of  the  said  William  Miller  as  executor,  and  since 
the  date  of  his  said  letters  testamentary,  yet  he  has  not  settled 
with  the  said  Court  of  Probate  the  business  and  affairs  of  said 
estate,  or  paid  to  the  said  William  Lee  D.  Ewing  the  debt  and 
judgment  aforesaid,  or  any  part  thereof,  although  often  re- 
quested so  to  do. 

"And  the  said  People  of  the  State  of  Illinois,  protesting  that 
the  said  defendants,  Miller  and  Simms,  have  not  kept,  fulfilled 
or  performed  anything  in  their  said  bond  and  obligation,  or 
by  the  laws  of  the  State  as  the  said  Miller  was  bound  to  do  and 
perform,  and  that  the  said  debt  and  judgment  and  costs  in 
favor  of  the  said  Ewing  remained  totally  in  arrear  and  unpaid 
to  him,  said  Ewing,  contrary  to  the  tenor  and  effect,  true  in- 
tent and  meaning  of  the  said  indenture  and  the  laws  of  the 
State  aforesaid,  to  wit,  at  the  county  ,and  circuit  aforesaid. 

"And  so  the   said  People  say,  that  the  said  William  Miller 
and  Ignatius  R.  Simms  (although  often  requested  so 
to  do)  have  not  *kept  their  said  covenants  so  by  them     [*85] 
made  as  aforesaid,  but  have  broken  the  same,  but  to 
keep  the  same  with  the  said  People,  have  hitherto  wholly  neg- 
lected and  refused,  and  still  do  neglect  and  refuse,  to  the 
damage  of  the  said  People  one  thousand  dollars,  and  there- 
fore this  suit  is  brought  for  the  use  of  the  said  William  Lee 
D.  Ewing  as  aforesaid,  to  wit,  at  the  county  and  circuit  afore- 
said. 

"M.  McCoNNELL, 

"Attorney  for  the  People  and  Ewing." 
Judgment  was  given  pro  forma  for  the  defendants  upon  de- 
murrer to  the  declaration,  and  the  cause  by  agreement  was 
brought  into  this  Court. 

L.  DAVIS  and  S.  McRoBERTS,  for  plaintiffs  in  error,  relied 
upon  R.  L.  650,  §  121  (Gale's  Stat.  716) ;  Idem,  653,  §  132 
(Gale's  Stat  718) ;  Idem,  634,  §  65  (Gale's  Stat.  703-4.) 

WILLIAM  THOMAS,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  case  is  submitted  for  the  decision  of  this  Court,  on  a 
written  agreement,  the  parties  thereby  waiving  the  service  of 
process,  and  entering  their  appearance  and  filing  a  record  of 
the  cause.  By  an  inspection  of  the  record,  it  appears  that  it 
was  an  action  of  covenant  on  an  executor's  bond,  against  the 
defendants,  in  the  Morgan  Circuit  Court,  and  that  only  two  of 

«7 


s:.  YANDALIA. 


People  of  the  State  of  Illinois  v.  Miller  and  Simms. 

the  obligors  in  the  bond  have  been  sued.  The  declaration 
avers  the  appointment  of  Miller  as  executor,  and  that  he  took 
upon  himself  the  burthen  of  the  administration  and  executor- 
ship  of  the  testator ;  and  that  he,  with  the  other  defendant, 
and  one  Waller  Jones,  then  and  there  made  and  entered  into 
a  bond  which  is  in  exact  conformity  with  the  form  prescribed 
by  the  statute  of  the  State,  i.u  such  cases,  and  which  is  set  out 
in  hoc  verba.  It  is  then  averred,  that  the  defendants  have  not 
kept  their  covenants  in  the  bond  contained,  but  have  broken 
the  same,  because  the  relator,  Ewing,  recovered  by  default  a 
certain  judgment  against  Miller,  as  executor,  for  the  sum  of 
eight  hundred  and  thirty -four  dollars  in  the  Morgan  Circuit 
Court,  at  the  May  term  of  said  Court,  1833,  with  costs  of  suit, 
to  be  levied  on  the  goods  and  chattels  of  the  testator,  in  the 
hands  of  the  executor  to  be  administered  ;  upon  which  judg- 
ment an  execution  had  been  issued  and  returned  nulla  bona. 
The  declaration  then  avers  a  non-payment  by  defendant,  Miller, 
of  such  judgment,  and  that  he  has  wasted  and  devastated  the 
estate,  and  goods,  and  chattels,  and  effects  of  the  testator.  It 
then  assigns  various  breaches  of  the  condition  of  the  bond  in 

not  returning  an  inventory  and  valuation  of  the  per- 
[*86]  sonal  estate  of  the  testator,  and  the  not  *perf  orming  the 

general  requirement  of  the  obligations  of  the  bond, 
and  avers  that  the  defendant,  Miller,  has  sold  and  wasted  the 
estate  of  the  testator.  It  also  alleges  that  no  settlement  of  the 
estate  has  been  made  in  the  Court  of  Probate  of  Morgan 
county,  although  one  year  had  elapsed  from  the  date  of  the 
letters  testamentary,  as  by  law  he  was  bound  to  have  done ; 
nor  has  any  account  of  the  actings  and  doings  of  the  executor 
been  presented  to  such  Court.  To  this  declaration  there  was 
a  general  demurrer,  and  also  an  admission  or  agreement,  that 
Waller  Jones  executed  the  b<  1  with  the  other  defendants, 
and  that  he  was  jointly  bound  with  the  other  defendants  in 
the  bond ;  that  he  was  still  living,  and  that  the  defendants 
might  take  advantage  of  the  non-joinder  of  Jones  upon  the 
demurrer,  as  though  a  plea  in  abatement  had  been  filed.  At 
the  request  of  the  parties  a  judgment  pro  forma  was  rendered, 
sustaining  the  demurrer. 

On  this  statement  of  the  case,  two  points  seem  to  be  pre- 
sented for  consideration : 

1.  Whether    the   declaration    is   substantially  good,  and 
whether,  under  our  laws,  the   action  on  the  bond  could  be 
maintained  for  a  breach  of  its  conditions. 

2.  Can  the  action  be  sustained  against  two  of  the  obligors 
only? 

On  the  first  point,  it  is  not  perceived  why  the  declaration  is 


DECEMBER  TERM,  1833.  86 

People  of  the  State  of  Illinois  v.  Miller  and  Simms. 

not  sufficient.     It  contains  all  the  necessary  recitals  and  aver- 
ments, and  the  breaches  seem  to  be  well  assigned. 

The  statute  relative  to  wills  and  testaments,  in  force  July, 
1829,  in  the  one  hundred  and  thirty-second  section,  provides, 
"  That  whenever  any  executor  or  administrator  shall  fail  to 
comply  with  the  provisions  of  that  act,  or  shall  fail  to  comply 
with  any  or  all  the  covenants  in  his  bond,  an  action  may  be 
forthwith  instituted  and  maintained  on  such  bond  against  the 
principal  or  securities,  or  both  ;  and  the  failure  aforesaid  shall 
be  a  sufficient  breach  to  authorize  a  recovery  in  the  same  man- 
ner as  though  a  devaxlavit  had  been  previously  established 
against  such  executor  or  administrator." 

This  section  gives  the  action  in  cases  of  neglect  or  refusal  to 
comply  with  either  of  the  provisions  of  the  law  which  controls 
and  governs  the  conduct  of  the  executor,  as  also  in  cases 
where  he  shall  violate  any  one  or  more  of  the  covenants  in 
the  bond,  and  has  dispensed  with  the  proof  of  a  devastavit,  ac- 
cording to  the  course  of  the  common  law. 

Upon  the  second  point,  it  appears  only  necessary  to  observe 
that  the  right  to  sue  any  one  or  more  of  the  obligors  in  the 
name  of  the  People,  for  the  use  of  any  person  who  may  be  in- 
jured by  the  neglect  or  improper  conduct  of   the  executor,  is 
expressly  given  by  the  provisions  of  the  sixty-fifth  section  of 
the  same  act.     There  can,  then,  be  no  irregularity  or 
error  in  not  joining  *Jones  one  of  the  obligors,  and  it     [*8T] 
could  form  no  valid  objection  on  demurrer,  nor  be  cause 
of  abatement.     The  statute  has,  in  this  particular,  changed  the 
common  law  rule  as  to  the  joinder  of  parties. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded  for  further  proceedings  not  inconsistent  with 
this  opinion.  The  plaintiffs  in  error  recover  their  costs. 

Judgment  reversed. 

LOCKWOOD,  J.,  dissented. 


87  YANDALIA. 


Linn  r.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 


WILLIAM  LINN,  plaintiff  in  error,  v.  THE  PKESIDEXT 
AND  DIRECTORS  OF  THE  STATE  BANK  OF  ILLINOIS, 
defendants  in  error. 

Error  to  Jackson. 

JURISDICTION — SUPREME  COURT  OF  U.  S.— The  Supreme  Court  of  the 
United  States  is  the  proper  and  constitutional  forum  to  decide,  and  finally 
to  determine  all  suits  where  is  drawn  in  question  "  the  validity  of  a  statute 
of,  or  an  authority  exercised  under  any  State,  on  the  ground  of  its  being 
repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United  States,  and 
the  decision  is  in  favor  of  such  validity." 

LAST  DECISION  CONCLUSIVE  ON  STATE  COURTS. — Where  the  Supreme 
Court  of  the  United  States  has  decided  that  a  State  law  violates  the  Consti- 
tution of  the  United  States,  the  judges  of  the  respective  States  have  no  right 
to  overrule  or  impugn  such  decision. 

"  BILJJS  OF  CREDIT." — The  bills  issued  by  the  old  State  Bank  of  Illinois, 
were  "  bills  of  credit "  within  the  meaning  of  the  Constitution  of  the  United 
States ;  and  a  note  given  in  consideration  of  such  bills,  is  void,  and  can  not 
be  collected  by  Jaw." 

The  case  ot  Snyder  v .  the  State  Bank  of  Illinois,  Breese,  122,  is  overruled. 

THIS  was  an  action  of  debt  instituted  by  the  defendants  in 
error  in  the  Jackson  Circuit  Court,  against  the  plaintiff  in 
error,  upon  a  sealed  note. 

The  declaration  is  in  the  usual  form. 

The  defendant  in  the  Court  below,  the  plaintiff  in  error, 
filed  the  following  pleas : 

"  And  the  said  defendant  comes  and  defends  the  wrong  and 
injury,  when,  etc.,  and  craves  oyer  of  the  said  supposed  writ- 
ing obligatory  in  the  said  plaintiffs'  declaration  mentioned, 
and  it  is  read  to  him  in  these  words:  "Twelve  months  after 
date  I  promise  to  pay  to  the  President  and  Directors  of  the 
State  Bank  of  Illinois,  at  their  branch  bank  at  Brownsville, 
for  the  use  of  the  people  of  said  State,  four  hundred  and  fifty 
dollars  for  value  received.  Witness  my  hand  and  seal  this 
13th  July,  1822. 

"  Witness  Jo.  Duncan.  WILLIAM  LINN.     [L.  s.]  " 

*Bilhof  credit — What  are. — To  constitute  a  bill  of  credit  within  the  con- 
stitution, it  must  be  issued  by  a  State  on  the  faith  of  the  State,  and  be 
designed  to  circulate  as  money.  It  must  be  a  paper  which  circulates  on  the 
credit  of  the  State,  and  is  so  received  and  used  in  the  ordinary  business  of 
life.  The  individual  or  committee  who  issues  the  bill  must  have  the  power 
to  bind  the  State ;  they  must  act  as  agents,  such  as  do  not  incur  personal  re- 
sponsibility,  nor  impart  as  individuals  any  credit  to  the  paper.  In  a  bill  of 
credit  the  promise  to  pay  is  that  of  the  State.  The  contingent  liability  of 
the  State  to  make  good  the  bills  of  its  own  bank  is  different,  and  does  not 
make  its  notes  those  of  the  State.  Briscoe  v.  Bank  of  Kentucky,  11  Pet. 
257  ;  Darrington  r .  State  Bank  of  Alabama,  13  How.  12  ;  Craig  v.  State 
of  Missouri,  4  Pet.  410 ;  Byrne  v.  State  of  Missouri,  8  Pet.  40. 
70 


DECEMBER  TERM,  1833.  87 

Linn  v.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

Which  being  read  and  heard,  the  said  defendant  says  that  the 
said  plaintiffs  ought  not  to  have  or  maintain  their  said  action 
against  him,  this  defendant,  because  he  says  that  the  said 
writing  ^obligatory  was  sealed  and  delivered  by  him  to  [*88] 
the  said  plaintiffs  for  the  notes  or  bills  issued  and 
emitted  by  the  sa'd  President  and  Directors  of  the  said 
State  Bank  of  P^nois,  under  and  by  virtue  of  an  act  of  the 
General  Assembly  of  the  said  State,  entitled  "  An  act  estab- 
lishing the  State  Bank  of  Illinois"  passed  in  the  year  of  our 
Lord,  1821,  which  said  act  of  the  General  Assembly  is  here 
inserted,  and  made  a  part  of  this  plea. 

By  which  said  act  the  said  notes  or  bills  of  said  bank  are 
not  redeemable  or  payable  by  said  bank  until  after  the  expira- 
tion of  ten  years  from  and  after  the  passage  of  the  said  act 
incorporating  said  bank,  and  from  and  after  the  time  said  notes 
or  bills  should  be  emitted  and  issued  by  i-aid  bank,  which  said 
notes  or  bills  were  issued  or  emitted  on  the  day  of  July, 

1821,  and  the  emission  and  delivery  thereof  by  the  said  plaint- 
iffs to  this  defendant  were  the  sole  and  only  consideration  for 
the  said  writing  obligatory  so  executed  as  aforesaid,  and  for 
no  other  consideration  whatever  was  the  said  writing  obliga- 
tory executed,  sealed  and  delivered  by  the  defendant  to  the 
saicl  plaintiffs ;  which  said  notes  or  bills  so  emitted,  issued  and 
delivered  as  aforesaid,  by  the  said  plaintiffs  to  this  defendant, 
are  bills  of  credit  within  the  true  intent  and  meaning  of  the 
Constitution  of  the  United  States  ;  and  so  the  said  defendant 
says,  that  the  said  writing  obligatory  in  the  said  plaintiffs' 
declaration  mentioned,  was  sealed  and  delivered  by  this  defend- 
ant to  the  said  plaintiffs,  without  his  having  received  of  and 
from  said  plaintiffs,  any  good  or  valuable  consideration  there- 
for, and  this  he  is  ready  to  verify,  wherefore  he  prays  judg- 
ment if  the  said  plaintiffs  ought  to  have  or  maintain  their  said 
action  thereof  against  him,  this  defendant,  etc.  I 

S.  BKEESE,  for  defendant. 

And  for  further  plea  in  this  behalf  "  the  said  defendant 
says  that  the  plaintiffs  aforesaid  ought  not  to  have  or  maintain 
their  aforesaid  action  against  him,  because  he  says  that  here- 
tofore, to  wit,  at  the  term  of  the  Circuit  Court  for  Jackson 
county,  State  of  Illinois,  in  the  year  of  our  Lord  , 

the  said  plaintiffs  impleaded  the  said  defendant  in  a  certain 
plea  or  action  of  scire  facias  on  a  mortgage  executed  by  this 
defendant  to  said  plaintiffs,  for  securing  the  payment  of  the 
game  identical  sum  of  money  in  the  said  declaration  mentioned ; 
and  such  proceedings  were  thereupon  had  in  said  Court  in  that 
action,  that  afterward,  to  wit,  at  the  May  term,  1825,  of  said 
Court,  the  said  plaintiffs,  by  the  consideration  and  judgment  of 

71 


VANDALIA. 


Linn  t>.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

said  Court,  recovered  against  said  defendant  the  sum  of 
$167.75,  and  costs,  it  being  the  amount  due  upon  said  mort- 
gage, which  was  given  to  secure  the  payment  of  the  note  on 
which  this  suit  is  brought,  whereof  the  eaid  defendant  is  con- 
victed, as  by  the  records  and  proceedings  remaining  in  said 
Court  will  more  fully  and  at  large  appear;  which  said 
[*89]  judgment  still  remains  in  full  force  and  effect,  *not 
the  least  reversed  or  made  void,  all  which  the  said  de- 
fendant is  ready  to  verify  by  the  record,  wherefore  he  prays 
judgment  if  the  said  plaintiffs  ought  to  have  or  maintain  their 
said  action  againt  him,  this  defendant. 

S.  BKEESE,  for  defendant. 

To  each  of  these  pleas  a  demurrer  was  filed,  which  was  sus- 
tained by  the  Court,  and  a  judgment  rendered  for  the  plaint- 
iffs in  the  Court  below,  for  $351.95  and  costs. 

The  cause  was  tried  at  the  October  term,  1831,  before  the 
Hon.  Thomas  C.  Browne. 

S.  BREESE  and  D.  J.  BAKER,  for  the  plaintiffs  in  error. 

J.  SEMPLE,  Attorney  General,  for  the  defendant  in  error, 
contended : 

1st.  This  Court  has  no  jurisdiction  to  declare  a  law  of  the 
State  legislature  unconstitutional  and  void,  and  to  disregard 
it. 

2d.  If  this  Court  has  such  a  power,  the  law  is  valid  and 
not  repugnant  to  the  Constitution  either  of  the  United  States 
or  of  the  State  of  Illinois. 

3d.     Admitting  the  law  to  be  void  or  repugnant  to  the  Con- 
stitution, yet  the  contract  founded  on  the  law  is  obligatory  on 
the  parties. 
\ 
\    LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  is  an  action  of  def>t,  brought  on  a  sealed  note,  executed 
by  Wm.  Linn  to  the  plaintiffs  below.  The  defendant  in  the 
Court  below  pleaded  that  the  writing  obligatory  was  sealed 
and  delivered  by  him  to  the  plaintiffs,  for  and  in  consideration 
of  bills  issued  and  emitted  by  the  plaintiffs,  under  and  by  virtue 
of  an  act  of  the  legislature  of  the  State  of  Illinois,  entitled  "  An 
act  establishing  the  State  Bank  of  Illinois"  and  that  the  emit- 
ting and  issuing  said  bills  by  said  bank,  under  and  by  authority 
of  said  act,  was  a  violation  of  the  10th  Section  of  the  1st  Ar- 
ticle of  the  Constitution  of  the  United  States,  which  forbids  a 
State  to  «  emit  bills  of  credit." 

To  these  pleas  the  plaintiffs  below  demurred,  and  judgment 
was  given  in  the  Circuit  Court  in  favor  of  the  bank.  To  re- 


DECEMBER  TERM,  1833.  89 

Linn  v.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

verse  this  judgment,  the  defendant  below  has  brought  a  writ 
of  error  to  this  Court. 

The  main  question  presented  by  this  case  for  the  considera- 
tion of  this  Court,  is  whether  the  act  establishing  the  State 
Bank,  so  far  as  said  act  authorized  the  issuing  of  the  bank  bills 
which  formed  the  consideration  of  the  sealed  note  sued  on,  is 
a  violation  of  the  Constitution  of  the  United  States. 

To  support  the  j:  osition  that  the  issuing  the  bank  bills  men- 
tioned in  the  plea  is  a  violation  of  the  Constitution  of  the 
United  States,  the  counsel  for  the  plaintiff  in  error  cited 
the    case    decided    *in    the    Supreme    Court   of  the     [*90] 
United  States,  of  Craig  et  al,  v.  The  State  of  Missouri. 
(4  Peters,  410.) 

This  Court  recognizes  the  correctness  of  the  doctrine  that 
the  Supreme  Court  of  the  United  States  is  the  proper  and  con- 
stitutional forum  to  decide  and  finally  to  determine  all  suits 
where  is  drawn  in  question  "  the  validity  of  a  statute  of,  or  an 
authority  exercised  under,  any  State,  on  the  ground  of  its  being 
repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  such  validity." 

The  decision  of  the  demurier  in  the  Court  below  necessarily 
drew  in  question  the  validity  of  the  statute  establishing  the 
State  Bank  of  Illinois ;  and  that  decision  being  in  favor  of  its 
validity,  brings  this  cause  within  the  do".trine  above  acknowl- 
edged. And  although  the  question  involved  in  this  case  is  of 
immense  importance  to  the  people  of  this-  State,  and  affects 
interests  of  great  magnitude,  yet  the  dut)  that  devolves  on 
this  Court  is  a  very  plain  one.  It  is  simplj  to  ascertain  what 
the  Supreme  Court  of  the  United  States  nas  decided  in  an 
analogous  case,  and  then  decide  in  accordance  with  the  decis- 
ion of  that  Court.  When  the  Supreme  Court  of  the  United 
States  have  decided  that  a  State  law  violates  the  Constitution 
of  the  United  States,  the  judges  of  the  respective  States  have 
no  right  to  overrule  or  impugn  such  decision.  State  judges 
are  sworn  to  support  the  Constitution  of  the  United  Stales, 
and  that  instrument  in  its  6th  Article  declares  that  "  This  Con- 
stitution, and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land,  and  the  judges  in  every  State 
shall  be  bound  thereby  ;  anything  in  the  constitution  or  law 
of  any  State  to  the  contrary  notwithstanding." 

As  theii  this  Court  is  bound  to  conform  its  decisions  on  ques- 
tions relative  to  the  unconstitutionally  of  State  laws,  to  the 
decisions  of  the  supreme  judicial  tribunal  of  the  nation,  it 
becomes  necessary  to  ascertain  what  that  Court  has  decided  in 


90  VANDAL1A. 


Linn  r.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

the  case  of  Craig  et  al.  v.  The  /State  of  Missouri.  Chief  Jus- 
tice Marshall,  who  delivered  the  opinion  of  the  majority  of  the 
Court,  investigates  the  questions  "  What  is  a  bill  of  credit  ? " 
and  "What  did  the  Constitution  mean  to  forbid?"  in  his  usual 
lucid  and  forcible  manner.  He  says  that  a  bill  of  credit  "  in 
its  enlarged  and  perhaps  literal  sense,  may  comprehend  any  in- 
strument by  which  a  State  engages  to  pay  money  at  a  future 
day ;  thus  including  a  certificate  given  for  money  borrowed. 
But  the  language  of  the  Constitution  itself,  and  the  mischief 
to  be  prevented,  which  we  know  from  the  history  of  our  coun- 
try, equally  limit  the  interpretation  of  the  terms.  The  word 

( emit '  is  never  employed  in  describing  those  contracts 
[*91]     by  which  a  State  binds  itself  to  pay  "*money  at  a  future 

day  for  services  actually  received,  or  for  money  borrowed 
for  present  use;  nor  are  instruments  executed  for  such  purposes,  in 
common  language  denominated  '  bills  of  credit.'  To '  emit  bills 
of  credit,'  conveys  to  the  mind  the  idea  of  issuing  paper  intended 
to  circulate  through  the  community  for  its  ordinary  purposes, 
as  money,  which  paper  is  redeemable  at  a  future  day.  This  is 
the  sense  in  which  the  terms  have  been  always  understood.  At 
a  very  early  period  of  our  colonial  history,  the  attempt  to  sup- 
ply the  want  of  the  precious  metals  by  a  paper  medium  was 
made  to  a  considerable  extent ;  and  the  bills  emitted  for  this 
purpose  have  been  frequently  denominated  bills  of  credit.  Dur- 
ing the  war  of  our  revolution  we  were  driven  to  this  expedi- 
ent ;  and  necessity  compelled  us  to  use  it  to  a  most  fearful  ex- 
tent. The  term  has  acquired  an  appropriate  meaning ;  and 
'  bills  of  credit,'  signify  a  paper  medium  intended  to  circulate 
between  individuals,  and. between  government  and  individuals, 
for  the  ordinary  purposes  of  society.  Such  a  medium  has  been 
always  liable  to  considerable  fluctuation.  Its  value  is  continu- 
ally changing  ;  and  these  changes,  often  great  and  sudden,  ex- 
pose individuals  to  immense  loss,  are  the  sources  of  ruinous 
speculations,  and  destroy  all  confidence  between  man  and  man. 
To  cut  up  this  mischief  by  the  roots,  a  mischief  which  was  felt 
throughout  the  United  States,  and  which  deeply  affected  the 
interest  and  prosperity  of  all,  the  people  declared  in  their  Con- 
stitution that  '  No  State  shall  emit  bills  of  credit.'  If  the 
prohibition  means  anything,  if  the  words  are  not  empty  sounds, 
it  must  comprehend  the  emission  of  any  paper  medium  by  a 
State  government,  for  the  purpose  of  common  circulation. 

*'Wnat  is  the  character  of  the  certificates  issued  by  author- 
ity of  the  act  under  consideration?  What  office  are  they  to 
perform  ?  Certificates  signed  by  the  auditor  and  treasurer  of 
the  State  are  to  be  issued  by  those  officers  to  the  amount  of 
$200,000,  of  denominations  not  exceeding  $10,  nor  less  than  50 

74 


DECEMBER  TERM,  1833.  91 

Linn  v.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

cents.  The  paper  purports  on  its  face  to  be  receivable  at  the 
treasury  or  at  any  loan  office  of  the  State  of  Missouri,  in  dis- 
charge of  taxes  or  debts  due  to  the  State. 

"The  law  makes  them  receivable  in  discharge  of  all  taxes  or 
debts  due  to  the  State,  or  any  county  or  town  therein,  and  of 
all  salaries  and  fees  of  office,  to  all  officers,  civil  and  military, 
within  the  State ;  and  for  salt  sold  by  the  lessees  of  the  public 
salt  works.  It  also  pledges  the  faith  and  funds  of  the  State 
for  their  redemption.  It  seems  impossible  to  doubt  the  inten- 
tion of  the  legislature  in  passing  this  act,  or  to  mistake  the 
character  of  these  certificates,  or  the  office  they  were  to  per- 
form. The  denomination  of  the  bills,  from  $10  to  50  cents, 
fitted  them  for  the  purpose  of  ordinary  circulation  ;  and  their 
reception  in  payment  of  taxes  and  debts  to  the  gov- 
ernment and  to  corporations,  and  of  *salaries  and  fees,  [*92] 
would  give  them  currency.  They  were  to  be  put  into 
circulation  ;  that  is,  emitted  by  the  government.  In  addition  to  all 
these  evidences  of  an  intention  to  make  these  certificates  the 
ordinary  circulating  medium  of  the  country,  the  law  speaks  of 
them  in  this  character,  and  directs  the  auditor  and  treasurer  to 
withdraw  annually  one  tenth  of  them  from  circulation. 
Had  they  been  termed  'bills  of  credit,'  instead  of  certificates, 
nothing  would  have  been  wanting  to  bring  them  within  the 
prohibitory  words  of  the  Constitution. 

"  And  can  this  make  any  real  difference?  Is  the  proposition 
to  be  maintained  that  the  Constitution  meant  'to  prohibit 
names  and  not  things?  That  a  very  important  act,  big  with 
great  arid  ruinous  mischief,  which  is  expressly  forbidden  by 
words  most  appropriate  for  its  description,  may  be  performed 
by  the  substitution  of  a  name  ?  That  the  Constitution,  in  one 
of  its  most  important  provisions,  may  be  openly  evaded  by 
giving  a  new  name  to  an  old  thing?  We  can  not  think  so.  We 
think  the  certificates  emitted  under  the  authority  of  this  act, 
are  as  entirely  '  bills  of  credit,'  as  if  they  had  been  so  denomi- 
nated in  the  act  itself. 

"  But  it  is  contended,  that  though  these  certificates  should 
be  deemed  'bills  of  credit,'  according  to  the  common  accepta- 
tion of  the  term,  they  are  not  so  in  the  sense  of  the  Constitu- 
tion, because  they  are  not  made  a  legal  tender." 

"  The  Constitution  itself  furnishes  no  countenance  to  this 
distinction.  The  prohibition  is  general.  It  extends  to  all  'bills 
of  credit,'  not  to  bills  of  a  particular  description.  That  tribu- 
nal must  be  bold  indeed,  which,  without  the  aid  of  other  ex- 
planatory words,  could  venture  on  this  construction.  It  is  the 
less  admissib'e  in  this  case,  because  the  same  clause  of  the  Con- 
stitution contains  a  subotantivc  prohibition  to  the  enactment  of 

75 


9'2  YANDALIA. 


Linn  r.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

tender  laws.  The  Constitution  therefore  considers  the  emis- 
sion of  'bills  of  credit,'  and  the  enactment  of  tender  laws,  as 
distinct  operations,  independent  of  each  other,  which  may  sep- 
arately be  performed.  Both  are  forbidden.  To  sustain  the 
one  because  it  is  not  also  the  other;  to  say  that  'bills  of  credit' 
may  be  emitted,  if  they  be  not  made  a  tender  in  payment  of 
debts,  is,  in  effect,  to  expunge  that  distinct  independent  pro- 
hibition, and  to  read  the  clause  as  if  it  had  been  entirely  omit- 
ted. We  are  not  at  liberty  to  do  this." 

"The  history  of  pa)  er  money  has  been  referred  to  for  the 
purpose  of  showing  that  its  great  mischief  consists  in  being 
made  a  tender ;  and  that  therefore  the  general  words  of  the 
Constitution  may  be  restrained  to  a  particular  intent."  "  Was 
it  even  true,  that  the  evils  of  paper  money  resulted  solely 
from  the  quality  of  its  being  made  a  tender,  this  Court  would 
not  feel  itself  authorized  to  disregard  the  plain  meaning 
[*93]  of  words,  in  search,  of  *a  conjectural  intent  to  which 
we  are  not  conducted  by  the  language  of  any  part  of 
the  instrument.  But  we  do  think  that  the  history  of  our 
country  proves  either  that  being  made  a  tender  in  payment  of 
debts  is  an  essential  quality  of  '  bills  of  credit,'  or  the  only  mis- 
chief resulting  from  them.  It  may,  indeed,  be  the  most  per- 
nicious ;  but  that  will  not  authorize  a  court  to  convert  a  gen- 
eral into  a  particular  prohibition." 

The  Chief  Justice,  after  giving  several  examples  taken  from 
the  history  of  the' United  States,  and  several  of  its  members, 
of  issues  of  paper  money,  some  of  which  were  made  a  tender 
in  payment  of  debts,  and  others  not,  and  showing  the  evils 
that  resulted  to  the  country  from  their  emission,  and  that  the 
evils  with  which  their  emission  was  fraught  did  not  depend 
upon  their  being  made  a  legal  tender,  and  contending  that 
all  these  issues  of  paper  money  were  alike  "  bills  of  credit," 
comes  to  the  conclusion  that  the  certificates  issued  by  the  loan 
office  in  Missouri  were  "  bills  of  credit,"  in  the  sense  of  the 
Constitution,  and  consequently  their  emission  was  forbidden 
by  that  instrument.  The  Chief  Justice  then  inquires,  "  Is  the 
note  executed  by  Craig,  valid,  the  consideration  of  which  con- 
sisted in  lending  to  him  of  these  loan-office  certificates?  He 
says  :  "  It  has  been  long  settled  that  a  promise  made  in  con- 
sideration of  an  act  forbidden  by  law  is  void.  It  will  not  be 
questioned  that  an  act  forbidden  by  the  Constitution  of  the 
United  States,  which  is  the  supreme  law,  is  against  law.  Now, 
the  Constitution  of  the  United  States  forbids  a  State  to  '  emit 
bills  of  credit.'  The  loan  of  these  certificates  is  the  very  act 
which  is  forbidden.  It  is  not  the  making  of  them  while  they 
lie  in  the  loan  offices,  but  the  issuing  of  them,  the  putting 

76 


DECEMBER  TERM,  1833.  93 

Linn  0.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

them  into  circulation,  which  is  the  act  of  emission,  the  act 
that  is  forbidden  in  the  Constitution.  The  consideration  of 
this  note  is  the  emission  of  bills  of  credit  by  the  State. 

"  The  very  act  which  constitutes  the  consideration  is  the 
act  of  emitting  bills  of  credit,  in  the  mode  prescribed  by  the 
law  of  Missouri ;  which  act  is  prohibited  by  the  Constitution 
of  the  United  States."  The  Chief  Justice,  after  citing  a  num- 
ber of  decisions  to  show  that  bonds  and  notes  given  on  illegal 
considerations  are  void,  says  that  "  a  majority  of  the  Court 
feel  constrained  to  say,  that  the  consideration  on  which  the 
note  in  this  case  (the  case  of  Craig  v.  The  State  of  Missouri) 
was  given,  is  against  the  highest  law  of  the  land,  and  that  the 
note  itself  is  utterly  void." 

Having  thus  ascertained  what  the  Supreme  Court  of  the 
United  States  has  decided  in  the  case  referred  to,  the  question 
here  arises :  Is  there  such  a  difference  between  the  certifi- 
cates issued  by  the  loan  office  in  Missouri,  and  the  bills  issued 
by  the  bank  established  in  this  State,  $s  to  exempt  these 
bills  from  being  *considerod  "  bills  of  credit "  within 
the  meaning  of  the  Constitution  of  the  United  States  ? 

A  concise  review  of  a  few  of  the  provisions  of  the  "Act 
establishing  the  State  Bank  of  Illinois  "  will  show  a  very 
close  and  striking  resemblance.  The  bank  was  to  be  owned  by 
the  State.  The  cashiers  were  to  give  bond  with  security  for 
the  use  of  the  State,  for  the  faithful  discharge  of  the  duties 
of  their  office.  The  bank  was  to  issue  notes  or  bills  to  the 
amount  of  $300,000,  in  bills  not  exceeding  $20  nor  less  than 
$1,  and  their  form  is  prescribed.  They  were  to  bear  two  per 
cent,  interest,  and  to  contain  a  promise  to  pay. 

The  bills  thus  to  be  issued  were  to  be  receivable  at  all  times 
for  debts  due  the  State,  or  to  any  county,  or  to  the  bank. 
The  $200,000  of  bills  as  soon  as  they  could  be  prepared  for 
"  Missouri "  were  to  be  loaned  to  citizens  of  the  State,  and  the 
loans  v  e  e  to  be  made  in  the  different  counties  according  to 
population.  All  the  revenues,  lands,  town  lots,  funds,  and  oth- 
er property  of  the  State  were  "pledged"  for  the  redemption 
of  the  bills,  and  the  legislature  "  pledged  "  themselves,  at  the 
expiration  of  ten  years  from  the  passage  of  the  act,  to  redeem 
all  the  bills  to  be  issued  by  virtue  of  the  act  in  gold  and  sil- 
ver. The  bank  was  also  required  to  withdraw  from  circula- 
tion, annually,  one  tenth  part  of  the  whole  amount  of  the 
bills  issued. 

From  this  statement  of  the  prominent  features  of  the  bank 
law,  it  clearly  appears  that  our  bank  and  the  Missouri  loan 
office,  although  called  by  different  names,  were  similar  in  their 
objects,  and  both  were  established  for  the  purpose  of  emit- 

77 


94  VANDALIA. 


Linn  r.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

ting  a  paper  currency  to  circulate  as  money  in  the  respect- 
ive States.  The  issuing  of  these  bills  is  according  to  the 
decision  of  the  Supreme  Court  of  the  United  States,  emit- 
ting "  bills  of  credit,"  and  a  violation  of  the  Constitution 
of  the  United  States.  It  is  also  to  be  remarked  in  relation 
to  the  act  establishing  our  State  Bank,  that  it  is  obnoxious 
to  the  charge  of  attempting  to  force  the  bills  of  the  bank 
into  circulation  by  staying  creditors  from  collecting  their 
debts  for  three  years,  unless  they  would  receive  these  bills 
in  payment. 

It  results  from  this  review  of  the  provisions  of  the  bank  law, 
that  it  contains  objectionable  features  not  found  in  the  Mis- 
souri loan-office  law  ;  and  there  can  be  no  doubt  if  this  case 
were  presented  to  the  Supreme  Court  of  the  United  States, 
that  that  Court  would  decide  that  the  bills  issued  by  the  State 
Bank  of  Illinois  were  "  bills  of  credit,"  and  that  the  sealed 
note  on  which  this  action  was  brought  was  given  for  an  ille- 
gal consideration,  and  therefore  null  and  void. 

Such  being  the  opinion  of  this  Court,  we  are  compelled  to 
say  that  the  judgment  of  the  Circuit  Court  must  be  reversed. 
As  the  decision  now  given  conflicts  with  the  de- 
[*95]  cision  of  this  *Court  in  the  case  of  Snyder  v.  The 
President  and  Directors  of  the  State  Bank  of  Illinois 
(Breeee,  122),  it  is  proper  to  notice  the  circumstances  under 
which  that  decision  was  made.  This  Court  there  say  :  "  That 
the  debtors  of  the  bank  can  not  raise  the  objection  that  the 
charter  of  the  bank  is  a  violation  of  the  Constitution.  After 
having  borrowed  the  paper  of  the  institution,  both  public 
policy  and  common  honesty  require  that  the  borrowers  should 
repay  it."  It  is  therefore  unnecessary  to  decide  whether  the 
incorporation  of  the  bank  was  a  violation  of  the  Constitution 
or  not.  This  decision  was  made  in  1826,  and  before  the  de- 
cision in  the  Supreme  Court  of  the  United  States,  and  under 
circumstances  that  did  not  afford  this  Court  an  opportunity  to 
investigate  authorities  to  any  extent.  Similar  decisions  had 
been  made  in  Missouri  and  Kentucky,  and  it  was  understood 
in  other  States.  The  error,  therefore,  which  this  Court  fell 
into  in  that  case,  was  as  far  as  the  information  of  the  Court 
extended,  a  common  one.  A  further  apology  might  be 
offered  for  the  error,  in  the  consideration  that  after  all  the 
light  that  time  and  fuller  investigation  had  shed  upon  the 
subject,  one,  at  least,  if  not  more,  of  the  Judges  of  the 
Supreme  Court  of  the  United  States,  entertain  the  same  opin- 
ion. 

Judgment  reversed. 

78 


DECEMBER  TERM,  1833.  95 

Linn  v.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

NOTE  BY  SCAMMON.  The  case  of  Craig  et  al.  v.  The  State  of  Missouri, 
was  decided  in  1830,  by  a  bare  majority  of  the  Court.  The  Supreme  Court 
of  the  United  States  then  consisted  of  John  Marshall,  William  Johnson, 
Gabriel  Duvall,  Joseph  Story,  Smith  Thompson,  John  McLean,  and  Henry 
Baldwin. 

Justices  Thompson,  Johnson,  and  McLean  did  not  assent  to  the  opinion  of 
the  Court  in  that  case:  4  Peters,  425. 

In  1837,  the  case  of  Briscoe  et  al.  v.  The  Bank  of  the  Commonwealth  of 
Kentucky,  came  before  the  Supreme  Court  of  the  United  States.  The  fol- 
lowing points  were  decided  in  that  case,  by  the  Court,  consisting  of  Roger 
B.  Taney,  Jncpph  Story,  Smith  Thompson,  John  McLean,  Henry  Baldwin, 
James  M.  Wayne,  and  Philip  P.  Barbour.  Justice  Story  alone  dissented 
from  the  opinion  of  the  Court. 

"On the  29th  of  November,  1820,  the  legislature  of  Kentucky  passed  an 
act,  establishing  a  bank,  by  the  name  of  '  The  Bank  of  the  Commonwealth  of 
Kentucky."  The  first  section  of  the  act  declares  that  the  bank  shall  be  estab- 
lished "  in  the  name  and  behalf  of  the  Commonwealth  of  Kentucky,"  under 
the  direction  of  a  president  and  twelve  directors,  to  be  chosen  by  the  legis- 
lature. The  second  section  enacts,  that  the  president  and  directors  shall  be 
a  corporation,  capable  of  suing  and  being  sued,  and  of  purchasing  and  sell- 
ing every  description  of  property.  The  third  section  declares  the  bank  to 
be,  exclusively,  the  property  of  the  commonwealth.  The  fourth  section  au- 
thorizes the  issuing  of  notes ;  and  the  fifth  declares  the  capital  to  be  two 
millions  of  dollars ;  to  be  paid  by  all  moneys  afterward  paid  into  the  treas- 
ury for  the  vacant  lands  of  the  State,  and  so  much  of  the  capital  stock  as  was 
owned  by  the  State  in  the  Bank  of  Kentucky;  and  as  the  treasurer  of  the 
State  received  those  moneys,  he  was  required  to  pay  them  into  the  bank. 
The  bank  had  authority  to  receive  money  on  deposit,  to  make  loans  on  good 
personal  security,  or  on  mortgage,  and  was  prohibited  increasing  its  debts 
beyond  its  capital.  Limitations  were  imposed  on  loans,  and  the  accommo- 
dations of  the  bank  were  apportioned  among  the  different  counties  of 
the  State.  The  bank  was  by  a  subsequent  act  authorized  to  issue  *three  [*96] 
millions  of  dollars;  and  the  dividends  of  the  bank  were  to  be  paid 
to  the  treasurer  of  the  State.  The  notes  of  the  bank  were  issued  in  the  com- 
mon form  of  bank  notes,  in  which  the  bank  promised  to  pay  to  the  bearer 
on  demand,  the  sum  stated  on  the  face  of  the  note.  The  pleadings  excluded 
the  Court  from  considering  that  any  part  of  the  capital  had  been  paid  by 
the  State;  but  in  the  argument  of  the  case,  it  was  stated,  and  not  denied, 
that  all  the  notes  which  had  been  issued,  and  payment  of  which  had  been 
demanded,  had  been  redeemed  by  the  bank.  By  an  act  of  the  legislature 
of  Kentucky,  it  was  required  that  the  notes  of  the  bank  should  be  received 
on  all  executions  by  plaintiffs,  and  if  they  failed  to  indorse  on  such  execution 
that  they  would  b,e  so  received,  further  proceedings  on  the  judgment  were 
delayed  for  two  years.  The  Bank  of  the  Commonwealth  of  Kentucky  insti- 
tuted a  suit  against  the  plaintiffs  in  error,  on  a  promissory  note  for  which 
the  notes  of  the  bank  had  been  given,  as  a  loan,  to  the  drawers  of  the  note. 
The  defendants  in  the  suit  claimed  that  the  note  given  by  them  was  void, 
as  the  same  was  given  for  the  notes  of  the  bank,  which  were  "  bills  of  cred- 
it" issued  by  the  State  of  Kentucky,  against  the  provisions  of  the  Constitu- 
tion of  the  United  States,  which  prohibits  the  issuing  of  "  bills  of  credit  " 
by  the  States  of  the  United  States;  and  that  the  act  of  the  legislature  of 
Kentucky,  which  established  the  bank,  was  unconstitutional  and  void.  By 
the  Court. — The  act  incorporating  the  Bank  of  the  Commonwealth  of  Ken- 
tucky was  a  constitutional  exercise  of  power  by  the  State  of  Kentucky;  and 
the  notes  issued  by  the  bank  are  not  bills  of  credit,  within  the  meaning  of 
the  Constitution  of  the  United  States. 

The  definition  of  the  terms  "  bills  of  credit,"  as  used  in  the  Constitution 
of  the  United  States,  if  not  impracticable,  will  be  found  a  work  of  no  small 
difficulty. 

The  terms  bills  of  credit  in  their  mercantile  sense,  comprehend  a  great 

79 


9G  TANDALIA. 


Linn  r.  The  President  and  Directors  of  the  State  Bank  of  Illinois. 

variety  of  evidences  of  debt,  which  circulate  in  a  commercial  country. 
In  the  early  history  of  banks,  it  seems  their  notes  were  generally  de- 
nominated "bills  of  credit,"  but  in  modern  times  they  have  lost  thut 
designation,  and  are  now  called  either  bank  bills,  or  \>ank  notes.  But 
the  inhibitions  of  the  Constitution  apply  to  "  bills  of  credit,"  in  a  limited 
sen«e. 

The  definition  of  a  bill  of  credit,  which  includes  all  classes  of  bills  of 
credit  emitted  by  the  colonies  and  States,  is  a  paper  issued  by  the  sover- 
eign power,  containing  a  pledge  of  its  faith,  and  designed  to  circulate  as 
money. 

If  tne  legislature  of  a  State  attempt  to  make  the  notes  of  any  bank  a  ten- 
der, the  act  will  be  unconstitutional ;  but  such  attempt  could  not  affect,  in 
any  degree,  the  constitutionality  of  the  bank.  The  act  which  related  to  the 
receiving  the  notes  of  the  Bank  of  the  Commonwealth  of  Kentucky,  was  not 
connected  with  the  charter. 

The  Federal  government  is  one  of  delegated  powers ;  all  powers  not  del- 
egated to  it,  or  inhibited  to  the  States,  are  reserved  to  the  States  or  to  the 
people. 

A  State  can  not  emit  bills  of  credit,  or  in  other  words,  it  can  not  issue 
that  description  of  paper,  to  answer  the  purposes  of  money,  which  was 
denominated  before  the  adoption  of  the  Constitution,  bills  of  credit. 
But  a  State  may  grant  acts  of  incorporation  for  the  attainment  of  these 
objects,  which  are  essential  to  the  interests  of  society.  This  power  is 
incident  to  sovereignty;  and  there  is  no  limitation  on  its  exercise  by  the 
States,  in  respect  to  the  incorporation  of  banks,  in  the  Federal  Constitu- 
tion. 

At  the  time  of  the  adoption  of  the  Constitution,  the  "  Bank  of  North 
America,"  and  the  "  Massachusetts  Bank,"  and  some  others,  were  in  op- 
eration. It  can  not  therefore  be  supposed  that  the  notes  of  these  banks 
were  intended  to  be  inhibited  by  the  Constitution,  or  that  they  were 
considered  as  "bills  of  credit,"  within  the  meaning  of  that  instrument. 
In  many  of  their  most  distinguishing  characteristics  they  were  essentially 
different  from  bills  of  credit,  in  any  one  of  the  various  forms  in  which 
they  were  issued.  If  then  the  powers  not  delegated  to  the  Federal  gov- 
ernment, nor  denied  to  the  States,  are  retained  by  the  States  or  the  peo- 
ple ;  and  by  a  fair  construction  of  the  terms  "bills  of  credit,"  as  used  in 
the  Constitution,  they  do  not  include  ordinary  bank  notes,  it  follows,  that 
the  power  to  incorporate  banks  to  issue  these  notes,  may  be  exercised  by  a 
State. 

A  uniform  course  of  action,  involving  the  right  to  the  exercise  of  an  im- 
portant power  by  the  State  government  for  half  a  century,  and  this  almost 
without  question,  is  no  unsatisfactory  evidence  that  the  power  is  rightfully 
exercised. 

A  State  can  not  do  that  which  the  Federal  Constitution  declares  it  shall 
not  do.  It  can  not  "  coin  money."  Here  is  an  act  inhibited  in  terms 
[*97]  so  precise,  that  thej  *can  not  be  mistaken.  They  are  susceptible  but 
of  one  construction.  And  it  is  certain  that  a  State  can  not  incorpo- 
rate any  number  of  individuals,  and  authorize  them  to  coin  money.  Such 
an  act  would  be  as  much  a  violation  of  the  Constitution,  as  if  money  were 
coined  by  an  oiHcer  of  the  State  under  its  authority.  The  act  being  prohib- 
ited, can  not  be  done  by  a  State  directly  or  indirectly.  The  same  rule  applies 
to  bills  of  credit  issued  by  a  State. 

To  constitute  a  "bill  of  credit"  within  the  Constitution,  it  must  be  issued 
by  a  State,  on  the  faith  of  the  State,  and  designed  to  circulate  as  money. 
It  must  be  a  paper  which  circulates  on  the  credit  of  the  State,  and  so  re- 
ceived and  used  in  the  ordinary  business  of  life.  The  individual  or  com- 
mittee who  issue  it  must  have  power  to  bind  the  State;  they  must  act  as 
agents,  and  of  course  not  incur  any  personal  responsibility,  nor  impart,  as 
individuals,  any  credit  to  the  paper.  These  are  the  leading  characteris- 

80 


DECEMBER  TERM,  1833.  97 

County  of  Vermilion  v.  Knight. 

tics  of  a  bill  of  credit,  which  a  State  can  not  emit.  The  notes  issued  by 
the  Bank  of  the  Commonwealth  of  Kentucky  have  not  these  characteristics. 

When  a  State  emits  bills  of  credit,  the  amount  to  be  issued  is  fixed  by  law ; 
as  also  the  fund  out  of  which  they  are  to  be  paid,  if  any  fund  be  pledged  for 
their  redemption;  and  they  are  issued  on  the  credit  of  the  State,  which  in 
some  form  appears  upon  the  face  of  the  notes,  or  by  the  signature  of  the 
person  who  issues  them. 

No  sovereign  State  is  liable  to  be  sued  without  her  consent.  Under  the 
articles  of  confederation,  a  State  could  be  sued  only  in  cases  of  boundary.  It 
is  believed  thai  'there  is  no  case  where  a  suit  has  been  brought,  at  any  time,  on 
a  bill  of  credit  against  a  State;  and  it  is  certain  that  no  suit  could  have  been 
maintained  on  this  ground,  prior  to  the  Constitution. 

The  case  of  Craig  v.  The  State  of  Missouri,  4  Peters,  410,  is  not  authority 
to  sustain  the  claim  that  the  notes  of  the  Bank  of  the  Commonwealth  were 
bills  of  credit.  The  decisions  in  that  case  applied  to  obligations  of  an  en- 
tirely different  character. 

There  is  no  principle  decided  by  this  Court,  in  the  case  of  Craig  v.  The 
State  of  Missouri,  which  at  all  conflicts  with  the  views  presented  by  the 
Court  in  this  case.  Indeed  the  views  of  the  Court  are  sustained  and  strength- 
ened, by  contrasting  the  present  case  with  that:  11  Peters,  257. 


THE  COUNTY  OF  VERMILION,  appellant,   v.  WILLIAM 
KNIGHT,  appellee. 

Appeal  from  Vermilion. 

CONTRACT  \VITH  COUNTY  COMMISSIONERS — PROOF. — Where  the  County 
Commissioners  of  V.  County  contracted  with  K.,  a  physician,  to  render 
medical  services  to  a  pauper,  but  neglected  to  have  a  record  made  of  such 
contract,  held,  that  the  contract  might  be  proved  by  parol  evidence. 

It  is  not  necessary  for  a  party  who  has  rendered  aid  to  a  person  acknowl- 
edged as  a  pauper  by  the  County  Commissioners,  and  at  their  request,  to 
prove  that  such  person  was  actually  entitled  to  aid  under  the  laws  providing 
for  the  support  of  the  poor. 

PLEADING. — Where  a  declaration  against  a  county  contained  two  counts, 
one  of  which  charged  that  the  contract  was  entered  into  with  the  "  Com- 
missioners of  snid county,"  and  the  other  charged  that  the  contract  was 
entered  into  with  the  "  county,  by  its  commissioners,''1  held  there  was  no 
misjoinder  of  counts  or  parties. 

COUNTY  COMMISSIONERS'  COURT— JURISDICTION. — The  County  Commis- 
sioners' Court  has  no  jurisdiction  to  determine  civil  causes  between  individ- 
uals or  corporations. 

The  County  Commissioners,  when  acting  as  a  court,  can  bind  the  county 
by  their  contracts. 

THIS  cause  was  tried  at  the  April  term,  1833,  of  the 
Vermilion  *Circuit  Court,  before  the  Hon.  William  Wil-     [*98] 
son  and  a  jury,  and  a  verdict  and  judgment  rendered  for 
the  appellee  for  $140  and  costs. 

CITED:  18  HI.  80.    Distinguished*  95  111.  358. 

VOL.  1-6  « 


VANDALIA. 


County  of  Vermilion  r.  Knight. 


S.  McRoKERTS,  for  the  appellant,  cited  1  Bibb,  114,  2«, 
Acts  of  1827,  108,  310,  §  3;  Chit.  Plead.  215,  229,  235,  357; 
1  Term  R  141;  Arch.  Plead.  21-70;  6  Term  K.  557;  Acts  of 
1829,  33;  Acts  of  1827,  309,  310;  Road  Law,  340,  §§  1, 13, 14, 
15,  2,  5,  12,  16,  17,  20,  22;  1  Littell,  10;  Acts  of  1827,  309; 
Act  of  1831,  113;  3  Cond.  R  311;  3  Johns.  23,  26;  8  Johns. 
223;  1  Cond.  R  19-20;  Jones  v.  Corns,  of  Randolph,  Breese, 
104,  106;  3  Term  R  38,  39,  40;  7  Term  R  266,  272;  1  Sulk. 
329;  9  Johns.  287,  290. 

J.  PEARSON,  for  the  appellee,  cited  the  statutes  on  the  sub- 
ject of  Co.  Com.  Courts;  3  Blac.  Com.  22  or  25;  10  Johns. 
188,  243,  249,  378;  3  Espinasse  R  91;  3  Bos.  and  Pul.  247;  1 
Comyn  on  Cont.  19  or  23,  35. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

The  appellee  instituted  a  suit  in  the  Circuit  Court  of  "Ver- 
milion county  against  the  appellant  and  declared  in  assumpsit. 
The  declaration  contained  three  counts  :  the  first  alleges  that 
the  appellee,  being  a  physician  and  surgeon,  and  exercising 
such  profession,  entered  into  a  contract  with  the  commission- 
ers of  said  county  to  employ  his  skill  and  art  in  his  profession 
upon  the  body  of  one  Ludington,  who  then  and  there  was 
treated  and  considered  in  the  county  by  such  commissioners  as 
a  pauper,  and  was  afflicted  with  various  diseases,  with  a  con- 
dition thereto  annexed,  that  unless  the  said  pauper  was  bene- 
fited and  relieved  by  his,  the  appellee's,  skill  and  medical  aid, 
he  was  to  receive  no  compensation;  but  if  he  was  so  benefited 
and  relieved,  the  appellee  was  to  receive  a  reasonable  compen- 
sation. There  is  an  averment  that  such  skill  and  medical  aid 
were  exercised  and  rendered,  and  that  the  pauper  was  greatly 
relieved  and  benefited  thereby,  and  that  the  appellee  reason- 
ably deserved  to  have  for  such  services  the  ^um  of  three  hun- 
dred dollars. 

The  second  count  avers  that  the  said  appellee  was  employed 
by  the  county,  through  its  commissioners,  to  render  his  skill 
and  attendance  on  the  said  pauper,  so  considered  and  treated 
as  such  by  said  commissioners,  who  was  afflicted  with  disease; 
and  that  in  consideration  thereof  the  said  county  became  in- 
debted to  the  said  appellee  in  the  sum  of  one  hundred  and 
eighty  dollars,  which  it  undertook  and  promised  to  pay. 

The  third  count  is  a  quantum  meruit  for  the  like  services 
rendered. 

To  these  counts  the  appellant  pleaded,  first,   the  general 
issue;  and  secondly,  a  special  plea  of  exclusive  original 
jurisdiction  in  *the  County  Commissioners'  Court  of     [*99] 

82 


DECEMBER  TERM,  1833.  99 

County  of  Vermilion  v.  Knight. 

Vermilion  county,  to  hear  and  determine  what  compensation 
the  said  appellee  was  entitled  to  for  such  services,  by  way  of 
Ixir  to  the  action;  to  which  second  plea  there  was  a  demurrer 
and  joinder. 

The  Circuit  Court  sustained  the  demurrer  to  the  second 
plea,  and  the  issue  on  the  first  was  tried,  and  a  verdict  ren- 
dered for  the  plaintiff.  On  the  trial  of  the  cause,  the  plaint- 
iff offered  parol  evidence  of  the  special  contract  entered  into 
by  the  County  Commissioners'  Court  of  Vermilion  county, 
the  records  of  that  Court  at  which  the  contract  was  alleged  to 
have  been  made,  not  showing  any  contract  between  the  plaint- 
iff and  defendant.  To  the  admission  of  this  evidence,  the 
counsel  for  the  defendant  Objected,  on  the  ground  that  the 
records  of  the  County  Commissioners'  Court,  or  some  writing 
duly  authenticated,  was  the  only  admissible  evidence  to  estab- 
lish the  contract  to  bind  the  county.  The  Circuit  Court 
overruled  the  objection,  and  permitted  the  evidence  to  go 
to  the  jury;  and  also  instructed  the  jury,  that  if  the  County 
Commissioners,  acting  as  a  court,  did  make  the  contract  sued 
on,  the  county  was  bound,  though  the  same  did  not  appear 
on  the  record,  or  in  any  other  writing  under  the  seal  of  the 
Court.  It  further  appears,  in  the  bill  of  exceptions,  that  the 
witnesses  who  proved  the  contract  were  the  commissioners 
who  were  in  office  at  the  time  the  contract  was  made,  but 
were  then  (at  the  time  of  trial )  out  of  office.  The  defendant 
excepted  to  the  decisions  of  the  Court. 

The  errors  assigned  are :  1st  That  there  is  a  inisjoinder  of 
parties  and  counts;  2d.  That  the  plaintiff  should  have 
averred  specially  in  his  declaration  all  those  facts  necessary  to 
show  that  the  peison  who  received  the  medical  aid  was  a  pau- 
per, and  that  the  county  had  become  legally  chargeable  with 
his  support;  3d.  That  the  demurrer  to  the  second  plea  was 
improperly  overruled;  4th.  That  the  Circuit  Court  erred  in 
admitting  parol  evidence  of  the  acts  of  the  Commissioners' 
Court;  5th.  That  the  Circuit  Court  erroneously  instructed 
the  jury,  that,  if  the  commissioners,  acting  as  a  court,  did 
make  the  contract  sued  on,  the  county  was  bound,  though  the 
same  did  not  appear  on  the  records,  or  in  any  other  writing 
under  the  seal  of  the  Court. 

The  several  grounds  of  error  will  be  considered.  The  first, 
alleging  a  misjoinder  of  parties  and  counts,  it  may  be  proper 
to  remark,  is  supjx)sed  to  be  based  on  the  use  of  the  terms 
*'  the  County  Commissioners ,"  and  "  the  County,  In/  its  Com- 
missioners" in  the  several  counts  of  the  declaration;  indeed 
such  is  the  ground  assumed  by  the  counsel  in  support  of  the 
errors.  It  is  not  perceived  how  this  can  be  said  to  be  a  mis- 

83      . 


YANDALIA. 


County  of  Vermilion  r.  Knight. 


joinder  of  parties  and  counts;  the  cause  of  action  set  out  in 
each  is  clearly  tile  same,  though  charged  in  different  ways. 
The  right  of  action  is  in  the  same  plaintiff,  and 
[*100]  against  the  same  defendant ;  for  ^although,  out  of 
abundant  caution,  the  pleader  may  have  charged  the 
contract  to  have  been  made,  in  one  count  by  the  County  Com- 
missioners, and  in  another  by  the  county  through  its  commis- 
sioners, still,  it  is  substantially  the  same  thing;  for  whether 
the  county,  by  its  commissioners,  or  the  county,  by  its  own 
name,  be  charged  with  the  contract,  the  liability  is  the  same. 

The  Constitution,  indeed,  expressly  names  them  commission- 
ers, and  through  all  the  legislative  acts,  when  spoken  of,  tho 
term  County  Commissioners,  is  used  as  frequently  as  "  County 
Commissioners'  Court."  They  are  known  by  law  as  a  public 
corporation,  created  for  the  purpose  of  superintending  the 
business  of  the  county  in  relation  to  its  fiscal  and  local  con- 
cerns; and  although  an  act  of  the  legislature  directs  that  suits 
shall  be  carried  on  against  the  county  by  its  particular  name, 
still  the  commissioners  are  its  public,  acknowledged,  lawful 
agent*  to  manage  all  its  interests.  The  objection,  then,  that 
the  plaintiff  has  joined  different  parties  or  causes  of  action,  in 
right  of  different  parties  in  the  declaration,  is  not  made  out. 

The  second  ground,  the  want  of  the  special  averments,  is 
not  well  taken.  The  County  Commissioners  were  by  law,  at 
the  time  of  the  making  of  the  alleged  contract,  specially 
charged  with  the  care  and  superintendence  of  all  paupers  in 
their  county;  and  when  they  had  adjudged  that  a  person  was 
entitled  to  relief,  and  employed  an  individual  to  afford  the  aid 
required,  as  between  the  county  and  the  person  so  employed,  it 
was  conclusive  and  final  on  the  county.  The  person  employed 
was  not  by  any  means  bound  to  inquire  into  the  correctness  of 
their  determination;  it  was  sufficient  that  they  had  authority 
to  afford  the  relief,  and  when  they  had  determined  that  it  was 
proper,  the  county  was  bound  by  their  contract,  they  having 
the  authority  to  make  it. 

This  is  not  the  case  of  an  action  on  an  implied  request, 
where  the  services  had  been  rendered  to  one  having  gained  a 
legal  settlement,  and  who,  in  consequence  of  such  settlement, 
would  be  entitled  to  such  relief,  and  with  the  expense  of 
which  the  county  would  be  chargeable.  In  such  a  case,  it 
will  not  be  doubted,  that  to  entitle  a  party  to  recover,  it 
would  be  necessary  to  aver  and  prove  all  the  facts  necessary 
to  show  that  the  party  to  whom  the  relief  was  extended  was 
a  pauper,  whom  the  county  was  legally  bound  to  support  and 
take  care  of. 

On  the  three  last  points,  it  may  be  proper  to  notice,  that 

84 


DECEMBER  TERM,  1833.  100 

County  of  Vermilion  t> .  Knight. 

as  they  are  in  some  measure  connected  they  may  with  propri- 
ety be  considered  together. 

Before  entering  on  the  question  of  the  propriety  of  the  ad- 
mission of  parol  evidence,  the  grounds  arising  on  the  demur- 
»  rer  may  be  disposed  of.  The  appellant  contends  that  the 
County  Commissioners'  Court  had  exclusive  original 
jurisdiction  to  determine  *what  sum  was  due  for  the  [*101] 
services  rendered,  and  that,  therefore,  the  Circuit 
Court  had  no  power  to  inquire  into  the  cause  of  action.  To 
obviate  this  objection,  we  need  only  recur  to  the  Constitu- 
tion of  the  State,  which,  in  creating  the  office  of  County  Com- 
missioner, declares  that  the  "  time  of  service,  power,  and  dit- 
ties, shall  be  regulated  and  defined  by  law"  and  that  the 
object  of  its  creation  is  expressly  "for  the  purpose  of  trans- 
acting county  business"  Here,  then,  no  power  was  given  to 
adjudicate  on  contracts,  and  more  particularly  so  where  the 
county  itself  was  one  of  the  contracting  parties.  But  if  a 
doubt  could  remain,  that  no  such  grant  was  ever  given  by  the 
Constitution,  it  is  removed  by  a  recurrence  to  the  powers  and 
duties  as  prescribed  by  legislative  enactment,  which  show,  at 
once,  the  sense  in  which  the  legislative  power  understood  that 
part  of  the  Constitution  which  created  the  office.  By  the  9th 
section  of  the  act  establishing  the  Court  of  County  Commis- 
sioners, passed  22d  March,  1819,  (R.  L.  143;  Gale's  Stat. 
162,) 'it  is  provided,  "That  there  shall  be  nothing  contained 
or  construed  in  this  act  to  give  the  said  Court  any  original 
or  appellate  jurisdiction  in  civil  or  criminal  suits  or  actions 
•wherein  the  State  is  ]^arty,  or  any  individuals,  bodies  politic 
or  cor jx> rate,  are  parties."  This  provision  at  once  excludes 
all  idea  of  jurisdiction  in  the  case  before  the  Court.  The 
demurrer  was,  therefore,  correctly  decided. 

In  the  consideration  which  might  be  given  to  the  admission 
of  the  parol  testimony,  on  the  supposition  that  it  conflicts 
with  settled  rules  of  evidence  in  regard  to  records,  or  the 
•written  evidence  of  courts  of  record,  it  will  be  perceived  that 
a  long  and  perha]>s  uninteresting  examination  of  powers  and 
duties  of  the  County  Commissioners'  Court,  as  they  have  been 
practically  understood,  might  be  made ;  but  how  far  that 
might  tend  to  elucidate  the  accuracy  of  the  decision  is  not  per- 
ceived ;  nor  indeed  could  it  be  profitable  or  necessary  to  in- 
vestigate the  questions  whether  this  Court  is,  in  the  legal  sense 
of  the  term,  a  court  of  record  ;  and  whether  it  is  marked  by 
those  constituent  features  which  properly  characterize  a  court 
of  record,  under  the  well  known  terms  of  actor,  reus,  judex. 

It  is  by  no  means  essential  to  a  correct  determination  of  the 
question  arising  on  the  admission  of  the  evidence,  or  of  the  in- 

85 


101  VANDALIA. 


County  of  Vermilion  v.  Knight. 


structions  of  the  Court,  that  it  should  he  determined  whether 
the  County  Commissioners'  Court  was  or  wa^  not  a  court  of 
record  or  a  public  corporation  with  specified  and  defined 
powers ;  because,  while  it  is  distinctly  admitted  that  they  could 
enter  into  no  contract  which  could  bind  the  county,  except 
while  sitting  as  a  court  or  corporation,  it  does  not  necessarily 
follow  that  the  evidence  of  that  contract  must  at  all  events  be 

proved  by  a  record  of  the  fact  upon  their  minutes. 
[*102J  It  is  true  under  the  general  rules  *of  evidence  that 

the  highest  evidence  of  which  the  fact  is  susceptible, 
and  within  the  power  of  the  party  to  produce,  should  be  ad- 
duced ;  but  then  there  are  exceptions  to  all  general  rules  and 
they  arise  from  the  very  necessity  of  the  particular  cases.  Now 
shall  it  be  pretended  that  in  this  case  the  plaintiff  should  have 
been  held  to  the  production  of  the  record  of  a  fact  of  which 
it  is  admitted  there  was  no  written  evidence  whatever,  and 
which  the  defendant  in  the  action  had  been  the  very  cause  of 
preventing  from  being  made  ?  The  County  Commissioners, 
when  the  contract  was  made,  either  through  design,  accident 
or  ignorance,  did  not  cause  a  record  or  minute  of  the  contract 
to  be  made  ;  and  hence  it  is  seriously  contended  that  the  plaint- 
iff could  not  recover  because  he  does  not  adduce  that  which 
does  not  exist,  and  which,  being  an  act  he  could  not  do  him- 
self, he  could  neither  control  nor  prevent  from  being  omitted 
to  be  done.  To  have  excluded  parol  evidence,  under  such 
circumstances,  would  have  been  an  act  of  great  injustice  the 
means  of  defeating  a  recovery  by  the  defendant's  own  wrong. 
The  contract  was  made  ;  it  was  the  duty  of  the  County  Com- 
missioners, to  have  reduced  the  contract  to  writing;  but, 
because  they  have  omitted  their  duty,  is  the  defendant  to 
take  advantage  of  this  misfeasance  or  nonfeasance  of  its  own 
agents?  To  do  this  would  be  to  make  the  rule  of  evidence 
subservient  to  the  purpose  of  injustice.  No  rule  of  evidence  is 
better  settled  than  that  a  party  may  give  parol  evidence  of  a 
writing  if  it  be  destroyed  or  lost.  And  why  is  it  so  ?  Is  it 
not  because  it  is  beyond  the  ability  of  the  party  to  produce  it  ? 
Does  not  then  the  reason  of  the  rule  apply  with  equal  if  not 
greater  force  here  ?  It  surely  must.  Suppose  in  this  case  a 
record  of  the  contract  had  been  made,  and  by  accident  the 
book  containing  it  had  been  lost  or  destroyed,  would  it  be 
denied  that  parol  evidence  might  be  given  ?  Was  the  engage- 
ment of  the  commissioners  to  pay  for  the  services  less  a 
contract  because  they  did  not  do  their  duty  and  cause  it  to 
be  entered  on  record?  Certainly  not.  But  the  case  shows 
that  the  identical  individuals  who,  as  commissioners,  made  the 
contract,  are  the  witnesses  by  whom  it  was  established  ;  and 

86 


DECEMBER  TERM,  1833.  102 

Woods  v.  Hynes. 

there  could  have  been  no  danger  that  they  could  not  declare 
accurately  what  that  engagement  was.  It  is,  however,  urged 
that  a  mandamus  would  have  been  the  proper  remedy  to  have 
been  resorted  to  in  the  lirst  instance  to  get  the  record  evidence, 
and  by  which  to  cciiij  el  the  county  commissioners  to  have 
put  it  on  the  records.  And  would  not  parol  proof  here,  also, 
have  been  resorted 'to,  to  establish  what  that  instrument  was 
which  the  commissioners  would  be  called  on  to  record  ?  But 
it  will  be  perceived  that  those  who  made  the  contract  were 
out  of  office,  and  that  consequently  their  evidence  would  have 
to  be  used  to  establish  the  contract.  It  is  then  clear  that  the 
evidence  was  properly  admitted. 

*This  reasoning  is  directly  applicable  to  the  charge  of  [*103] 
the  Court  and  equally  sustains  its  correctness.  The 
contract  was  made  as  a  court,  but,  from  the  necessity  of 
the  case,  parol  evidence  was  only  let  in  to  establish  what 
the  record  of  the  Court  could  not,  because  the  contract  was  im- 
properly omitted  to  be  entered  on  the  record,  as  the  law  cer- 
tainly intended  it  should  have  been. 

Judgment  affirmed  with  costs. 

Judgment  affirmed. 


JOHN  WOODS,  plaintiff  in  error,  v.  PETER  HYNES, 
defendant  in  error. 

Error  to  Adams. 

NEGOTIABLE  PAPER — RIGHTS  OF  BONA  FIDE  HOLDER. — The  consideration 
of  a  negotiable  note  can  not  be  impeached  in  the  hands  of  an  innocent  as- 
signee, who  received  the  note  before  it  became  due. 

SAME— FRAUD. — The  fraud  which  will  vitiate  a  note  in  the  hands  of  an 
innocent  assignee,  must  be  in  obtaining  the  making  or  executing  of  the  note.  \ 
Fraud  in  relation  to  the  consideration,  or  in  the  contract  upon  which  the  note 
is  given,  is  not  sufficient.* 

IMMATERIAL  ISSUE — PRACTICE. — Where  the  issue  is  wholly  immaterial, 
the  verdict  of  the  jury  will  be  set  aside.  The  rule  is,  that  where  matter, 
be  it  never  so  well  pleaded,  could  signify  nothing,  judgment  may,  in  such 
cases,  be  given  as  by  confession. 

•  THIS  action  was  tried  at  the  October  term,  1832  of  the 
Adams  Circuit  Court,  before  the  Hon.  Richard  M.  Young. 
The  note  upon  which  the  action  was  brought,  is  as  follows : 

NEGOTIABLE  PAPER — FRAUD.  CITED:  45111.  287;  5Bradw.  635.  See 
iVlulford  v.  Shepard,  port  583;  Young  v.  Ward,  21  111.  225;  Easter  v. 
Minard,  26  111.  494.  Immaterial  issue,  see  Hitchcock  v.  Haight,  2  Gilm.  604. 

^Negotiable  pnper — What  will  vitiate  a  promissory  note  in  hands  of 
a  bona  fide  holder.  See  Mulford  v,  Shepard,  post  583,  note. 

67 


103  VANDALIA. 


Woods  v.  Hynes. 


"  QUINCY,  18th  October,  1831. 

"  On  or  before  the  15th  of  March,  1832,  I  promise  to  pay  unto 
David  Wilkin  or  order,  the  sum  of  one  thousand  dollars,  law- 
ful money  of  the  United  States,  without  defamation,  being  for 
value  received,  as  witness  iny  hand  and  seal  tli3  above  date. 

PETEK  HYNES.  [L.  s.] 

Witness : 

S.  W.  EOGERS, 
WILLAKD  KEYES." 

"Pay  the  within  to  Mr.  John  Woods,  or  his  order  or  assigns. 
St.  Louis,  Nov.  21,  1831.  DAVID  WILKIN." 

The  defendant  in  the  Court  below  filed  the  following  plea : 
"  And  the  said  Peter  Hynes  comes  and  defends  the  wrong  and 
injury,  when  and  where,  etc.,  and  for  plea  says,  that  the  said 
plaintiff  (actio  ncni)  because  he  says  that  the  said  David  Wilkin, 
the  person  to  whom  the  said  writing  obligatory  was  made, 
used  fraud  and  circumvention  in  obtaining  the  said  writing 
from  this  defendant ;  that  the  said  Wilkin,  being  a 
[*104]  stranger  in  this  country,  *came  to  the  town  of  Quincy 
with  a  quantity  of  goods  boxed  tip  in  boxes  and  crates  ; 
that  the  said  Wilkin,  in  order  to  practice  fraud  and  cir- 
cumvention in  the  sale  of  the  said  goods  with  advantage 
and  benefit  to  himself,  represented  himself,  in  the  town  of 
Quincy,  to  be  a  religious  man  and  a  member  of  the  Presby- 
terian Church,  in  consequence  whereof  this  defendant  believed 
the  said  Wilkiii  to  be  an  honest  man,  who  would  take  no  ad- 
vantage, and  use  no  deception  in  a  trade  ;  that  the  said  writ- 
ing was  executed  by  this  defendant  to  the  said  Wilkin,  in  con- 
sideration of  the  sale  of  the  said  goods  from  the  said  Wilkin 
to  this  defendant ;  that  at  the  time  of  the  sale  of  the  said 
goods,  and  of  the  execution  of  said  note,  the  said  Wilkin,  not- 
withstanding all  his  said  pretenses  to  religion  and  sanctity,  did 
falsely  and  fraudulently,  and  with  an  intention  to  deceive  and 
circumvent  this  defendant,  represent  to  this  defendant  that 
the  said  goods  so  boxed  and  crated  up,  as  aforesaid,  were  of 
a  good  quality,  and  that  they  were  equal  in  quantity  to  be  of 
value  to  the  amount  of  said  writing.  Yet  this  defendant  in 
fact  says  that  the  said  goods  were  greatly  and  scandalously  in- 
ferior in  quality  to  what  they  were  represented  to  be  by  the 
said  Wilkin,  and  were  greatly  and  scandalously  deficient  in 
quantity  to  what  they  were  represented  to  be  by  the  said  Wil- 
kin, so  that  they  were  in  nowise  of  value  to  the  amount  of  the 
said  note  ;  and  the  said  defendant  says  that  so  soon  as  he  ascer- 
tained the  aforesaid  deficiencies  in  the  said  goods,  this  defend- 
ant tendered  the  said  goods  back  to  the  said  Wilkin,  but  the 


DECEMBEE  TEEM,  1833.  104 

Woods  v.  Hynes. 

said  Wilkin  refused  to  receive  the  same,  all  which  this  defend- 
ant is  ready  to  verify,  wherefore,  he  prays  judgment,  etc. 

FOKD,  EALSTON  &  WHITNEY, 

Defts.'  Attorneys." 

A.  WILLIAMS,  for  the  plaintiff  in  error. 

J.  W.  WHITNEY,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  debt,  on  a  sealed  note  for  one  thou- 
sand dollars,  which  is  made  payable  to  order.  By  the  declara- 
tion it  appears  that  the  plaintiff  became  the  assignee  of  the 
note  before  it  became  due.  To  the  declaration,  which  is  in  the 
usual  form,  the  defendant  pleaded  a  special  plea  that  the  note 
in  question  was  obtained  by  fraud  and  circumvention,  and 
alleged  that  the  goods  for  which  it  was  given  were  less  in 
quantity  and  deficient  in  quality  from  what  they  were  repre- 
sented by  one  Wilkin,  the  payee  of  the  note.  To  this  plea 
there  was  a  general  demurrei:  and  joinder.  The  Court  over- 
ruled the  demurrer,  adjudging  the  plea  sufficient ;  the  plaintiff 
took  issue  on  the  plea  ;  a  trial  was  had,  and  a  general  verdict 
for  the  defendant,  and  judgment  in  his  favor  for  costs. 

*To  reverse  this  judgment,  the  plaintiff  prosecutes  [*105] 
this  writ  of  error.  It  will  be  apparent  that  the  plea 
would  have  been  no  bar  to  the  action  on  the  note  in  the  hands 
of  an  innocent  indorsee  or  assignee,  as  has  been  repeatedly  ad- 
judged ;  nor  has  the  6th  section  (E.  L.  484;  Gale's  Stat.  527) 
of  the  act  of  the  General  Assembly  of  this  State,  given  the 
right  to  interpose  such  a  defense  where  there  is  a  mere  defi 
ciency  in  the  quality  or  quantity  of  the  article  sold,  as  between 
the  maker  and  the  assignee.  It  declares  that,  "  if  any  fraud  or 
circumvention  be  used  in  obtaining  the  making  or  executing 
any  instrument,"  the  note  shall  be  void  not  only  between  the 
maker  and  payee,  but  also  in  the  hands  of  every  subsequent 
holder. 

The  present  case  does  not  come  within  this  provision;  the 
fraud,  as  attempted  to  be  charged,  consists  in  the  contract  itself, 
and  not  in  the  obtaining  the  making  of  the  note.  If  a  person  rep- 
resent a  note  to  contain  a  particular  sum,  when,  in  truth,  the 
amount  is  much  greater,  here  would  be  a  case  contemplated  by 
the  statute ;  the  note  would  be  void  not  only  between  the 
maker  and  the  payee,  but  also  in  the  hands  of  every  subse- 
quent holder.  That,  however,  is  not  the  case  here,  for  the 
plea  admits  a  consideration,  but  denies  a  consideration  to  the 
extenc  of  the  face  of  the  note,  because  of  a  deficiency  in  the 


105  VANDALIA. 


Woods  v.  Hynes. 


quantity  and  quality  of  the  articles  sold,  which  it  alleges  were 
represented  to  be  of  full  value.  It  will  not  be  denied  that  the 
plaintiff  was  entitled  to  recover  the  value  of  the  goods,  even 
if  he  had  stood  in  the  place  of  the  original  payee,  but  being  an 
innocent  holder  before  the  note  became  due,  it  is  most  clear  that 
the  matters  of  the  plea  would  be  no  legal  defense  to  the  action. 
The  issue,  then,  was  a  wholly  immaterial  one,  and  the  verdict, 
on  that  ground,  ought  to  be  set  aside.  The  Circuit  Court 
ought  to  have  sustained  the  demurrer ;  but  it  will  be  seen  from 
the  pleadings  in  the  cause,  when  the  demurrer  to  the  plea  was 
overruled,  the  plaintiff  replied,  and  took  issue  on  the  plea.  The 
question  on  the  demurrer  might  probably  not  now  be  regu- 
larly before  the  Court  for  its  decision,  yet  as  the  issue  tried 
was  one  wholly  immaterial  to  the  question  before  the  Circuit 
Court,  this  Court  is  bound  to  reverse  the  judgment,  and  to 
render  a  judgment  for  the  plaintiff,  notwithstanding  the  ver- 
dict of  the  Court  below.  The  rule  is,  that  when  the  matter, 
be  it  never  so  well  pleaded,  could  signify  nothing,  judgment 
may,  in  such  cases,  be  given  as  by  confession.  ('2  Ld.  Raym. 
924;  1  Stra.  394;  2  Doug.  749;  'authorities  cited  in  2  Peters- 
dorff's  Abridg.) 

The  clerk  of  this  Court  will  assess  the  damages  on  the  note, 
which  is  the  interest,  and  render  a  judgment  for  the  debt  and 
damages  so  computed,  with  the  costs  of  this  Court,  and  the 
Circuit  Court  of  Adams  county. 

Judgment  reversed,  and  final  judgment  rendered. 

[*106J  *NoTE  BY  SCAMMON.  After  the  decision  of  the  Court  overruling 
the  demurrer,  if  the  defendant  rejoins  to  the  replication,  and  issue 
is  taken  thereon,  it  is  a  complete  waiver  of  the  demurrer:  Beers  v.  Philips, 
Breese,  19. 

A  plea  of  the  general  issue,  the  demurrer  being  undisposed  of,  is  a  waiver 
of  the  demurrer:  Cobbv.  Ingalls,  Breese,  180. 

After  issue  taken  on  the  facts  contained  in  the  declaration,  it  is  sufficient 
for  the  plaintiff,  by  proof,  to  sustain  the  material  averments  contained 
therein.  Ante,  52.  By  pleading  to  the  declaration,  the  defendant  waives 
his  demurrer:  Buckmaster  v.  Grundy,  decided  Dec.  term,  1836,  post. 

It  is  not  the  duty  of  the  Circuit  Court,  of  its  own  motion,  to  set  aside 
an  immaterial  issue.  A  motion  to  set  aside  such  issue  must  be  made  in  the 
court  where  the  verdict  is  rendered:  Burlingameet  al.  v.  Turner,  post,  588. 
90 


DECEMBEK  TEEM,  1833.  106 

State  Bank  of  Illinois  v.  Brown  et  al. 


IHE  PRESIDENT  AND  DIRECTORS  OF  THE  STATE  BANK 
OF  ILLINOIS,  plaintiffs  in  error,  v.  GEORGE  BROWN 
and  CHARLES  STEPHENS,  defendants  in  error. 

Error  to  Clinton. 

Statute  of  limitations. — A  debt  due  to  the  State  Bank  of  Illinois,  is  a 
iebt  due  to  the  State,  and  is  not  barred  by  the  statute  of  limitations. 

THIS  cause  was  tried  at  the  April  term,  1833,  of  the  Clinton 
Circuit  Court,  before  the  Hon.  Theophilus  W.  Smith,  and  a 
judgment  rendered  for  the  defendants,  upon  which  the  plaint- 
iffs brought  a  writ  of  error. 

J.  SEMPLE,  Attorney  General,  and  A.  COWLES,  for  the  plaint- 
iffs in  error,  cited,  Breese,  247;  Breese's  Appendix,  31;  Mad- 
ison, Co.  v.  Bartlett,  Ante,  67 ;  Bal.  on  Lim.  18. 

SNYDEK  and  THOMAS,  for  the  defendants  in  error. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court: 
This  is  an  action  of  assumpsit  brought  on  a  note  given  to 
the  plaintiffs  for  the  use  of  the  people  of  this  State.  The  de- 
fendants pleaded  the  statute  of  limitations,  to  which  plea  the 
plaintiffs  demurred,  and  the  Court  below  overruled  the  demur- 
rer and  gave  judgment  for  the  defendants.  The  error  relied 
on  to  reverse  the  judgment,  is,  that  the  statute  of  limitations 
does  not  apply  to  debts  due  the  bank.  In  the  case  of  More- 
land  and  Willis  v.  The  State  Bank  of  Illinois  (Breese,  203), 
this  Court  held  that  the  directors  of  the  bank  did  not  act  for 
their  own  benefit;  and  their  omission  and  neglect  did  not 
work  an  injury  to  the  State;  and  at  the  December  term, 
1824,  in  the  case  of  The  administrators,  widow \  and  heirs  of 
f\  Ernst,  deceased,  v.  The  State  Bank  of  Illinois  (Breese's 
App.  31),  this  Court  decided  that  a  release  from  all  debts  due 
to  this  State  was  a  release  of  debt  secured  by  mort- 
[*107]  gage  to  the  said  bank.  By  the  *statute  creating  the 
State  Bank,  it  is  declared  that  it  shall  belong  to  the 
State  of  Illinois.  Hence  it  follows  that  the  people  of  Illinois 
are  the  real  plaintiffs,  and  are  alone  entitled  to  the  benefit  of 
a  recovery.  The  president  and  directors  are  in  no  way  bene- 
fited or  injured  by  the  proceedings  of  the  bank.  Are  the 
people  then  barred  by  the  statute  of  limitations  ?  This  ques- 
tion, though  not  directly  before  the  Court,  was  incidentally  de- 
cided in  the  case  of  Madison  County  v.  Bartlett,  (ante  67)  at 

91 


107  VANDALIA. 


Crocker  v.  Goodsell  et  al. 


the  last  term  of  this  Court.  The  Court  there  say,  "It  is  a 
well  settled  principle  that  a  State  is  not  bam  d  by  a  statute  of 
limitations,  unless  expressly  named,"  and  we  sej  no  reason  to 
change  the  opinion  thus  expressed.  The  Court  below  there- 
fore erred  in  overruling  the  demurrer  to  the  defendants'  plea. 
The  judgment  below  is  reversed  with  costs,  and  the  cause  re- 
uiaiided  for  further  proceedings. 

Judgment  reversed. 


THOMAS  CROCKER,  plaintiff  in  error,  v.  HERMAN  GOOD- 
SELL  and  LUKE  KEYES,  defendants  in  error. 

Error  to  Adams. 

CONTRACTS. — Where  by  a  contract  G.  andK.  were  to  build  a  mill  for  C., 
and  four  months  after  the  contract  should  be  completed,  C.  was  to  pay  them 
8150.  Held,  that  they  could  not  sustain  an  action  for  the  $150  until  the  ex- 
piration of  four  months  from  the  time  the  services  were  offered  to  be  per- 
formed, although  they  were  prevented  from  completing  the  contract  by  the 
conduct  of  C. 

Whether  a  written  contract  contains  a  condition  precedent  or  not,  is  a 
question  of  law  for  the  Court  to  decide;  and  it  is  not  a  matter  for  the  con- 
sideration of  the  jury. 

On  the  19th  day  of  November,  1830,  Goodsell  and  Keyes 
instituted  a  suit  in  the  Adams  Circuit  Court,  against  Crocker, 
upon  the  following  agreement : 

"  This  article  of  agreement  made  and  entered  into  this  sev- 
enth day  of  May,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty,  between  Thomas  Crocker  of  the  first  part, 
and  Herman  Goodsell  and  Luke  Keyes  of  the  second  part,  all 
of  Adams  County  and  State  of  Illinois,  Witnesseth  :  That  the 
party  of  the  first  part  doth  agree  to  pay  the  said  party  of  the 
second  part  one  hundred  and  fifty  dollars,  when  the  said  party 
of  the  second  part  do  complete  a  saw-mill  in  a  workmanlike 
manner  for  the  said  party  of  the  first  part ;  and  the  said  party 
of  the  first  part  doth  agree  to  pay  the  said  party  of  the  second 
part  the  sum  of  .  one  hundred  and  fifty  dollars  in  four  months 
after  the  mill  shall  be  completed ;  and  the  said  party 
[*10S]  of  the  first  part  doth  agree  to  *board  the  said  party 
of  the  second  part  and  find  them  a  reasonable  quan- 
tity of  liquor,  and  to  haul  the  timber  to  the  place,  and  to  find 
all  necessary  irons  for  the  said  mill  as  fast  as  the  said  party  of 
the  first  part  can  conveniently,  and  the  said  party  of  the  first 
part  doth  agree  to  clean  out  a  suitable  place  for  said  mill. 

92 


DECEMBER  TERM,  1833.  108 

Crocker  v.  Goodsell  et  al. 

And  the  said  party  of  the  second  part  do  agree  to  put  in  a 
f orebay,  and  the  said  party  of  the  first  part  is  to  find  pknk  for 
that  purpose. 

(Signed)  THOMAS  CROCKER, 

H.  GOODSELL, 
LUKE  KEYES." 

The  declaration  was  in  asswnpsit,  and  contained  three 
counts.  The  first,  after  stating  the  contract,  averred  that  the 
plaintiffs  "  did  enter  upon  and  commence  the  said  work,  and 
for  that  purpose  did  procure  and  find  all  labor  and  tools  nec- 
essary for  performing  the  same,  and  did  the  same,  in  part,  ac- 
cording to  the  tenor  and  effect  of  said  agreement,  and  have 
always  been  ready  and  willing  to  perform  and  complete  the 
whole  of  the  said  work  in  pursuance  of  the  said  agreement,  of 
all  which  said  premises  the  said  defendant  hath  had  notice,  to 
wit,  at  Adams  county  aforesaid,  on  the  twentieth  day  of  June, 
in  the  year  aforesaid.  Yet  the  said  plaintiffs  in  fact  say  that 
the  said  defendant  contriving  and  wrongfully  intending  to  in- 
jure the  said  plaintiffs,  did  not  nor  would  perform  his  said 
promises  and  undertakings,  but  thereby  craftily  and  subtlely 
deceived  the  said  plaintiffs  in  this,  to  wit,  that  the  said  defend- 
ant did  not  nor  would  furnish  the  plank  necessary  in  erecting 
and  completing  the  said  f  orebay  connected  with  the  said  mill ; 
that  the  said  defendant  did  not  nor  would  provide  the  nec- 
essary irons  for  performing  and  completing  the  work  of  the 
said  mill ;  and  that  he,  the  said  defendant,  did  not  nor  would 
pay  the  said  sums  of  one  hundred  and  fifty  dollars  in  the  said 
agreement  specified,  or  either  of  them,  or  any  part  of  them,  to 
the  said  plaintiffs,  but  on  the  contrary  hath  hitherto  wholly 
neglected  and  refused  so  to  do,  to  wit,  at  Adams  county  afore- 
said, on  the  twenty-fifth  day  of  June,  in  the  year  aforesaid; 
and  the  said  defendant  further  disregarding  the  said  agree- 
ment and  his  said  several  promises  and  undertakings,  after- 
ward, on  the  twelfth  day  of  October  in  the  year  aforesaid,  at 
Adams  county  aforesaid,  did  not  nor  would  permit  or  sutler 
the  said  plaintiffs  to  proceed  to  complete  the  said  work,  and 
then  and  there  wholly  hindered  and  prevented  them  from  so 
doing,  to  wit,  on  the  twentieth  day  of  October,  in  the  year 
aforesaid,  at  Adams  county  aforesaid." 

The  second  contains  an  averment  of  the  completion  of  the 
contract  on  the  part  of  the  plaintiffs  ;  and  the  last  is  the  usual 
count  for  labor  and  services. 

The  defendant  pleaded  the  general  issue,  and  a  trial 
was  had  at  *the  May  term,  1831,  and  a  verdict  ren-     [*109] 
dered  for  the  plaintiffs  for  $200. 

A  bill  of  exceptions  was  taken,  which  is  as  follows :    "  Be  it 


109  YANDALIA. 


Crocker  t\  Goodsell  et  al. 


remembered  that  on  the  trial  of  this  cause,  after  the  evidence 
had  been  concluded  botli  on  the  part  of  the  plaintiffs  and  de- 
fendant, the  defendant's  counsel  moved  the  Court  to  instruct 
the  jury,  'That  the  com pletion  of  the  mill  and  forebay  is  a 
condition  precedent,  and  if  the  plaintiffs  have  failed  to  prove 
the  performance  of  said  work,  they  can  not  recover  the  specific 
price  agreed  to  be  paid  by  said  contract  for  the  said  services. 
And  if  they  are  entitled  to  recover  at  all,  they  can  not  recover 
the  last  payment  until  four  months  from  the  time  tfye  plaint- 
iffs did  the  last  work  on  the  said  mill.'  Which  instruction  the 
Court  refused  to  give,  and  decided  that  that  part  of  the  in- 
struction asked  for,  in  relation  to  the  completion  of  the  mill 
and  forebay,  and  its  being  a  condition  precedent,  was  a  matter 
for  the  consideration  of  the  jury ;  and  that  an  absolute  per- 
formance, in  point  of  fact,  would  not  be  necessary  to  be  proved, 
provided  an  offer  had  been  made  by  the  plaintiffs  to  perform 
the  work,  and  the  defendant  by  his  conduct  had  prevented  their 
doing  it.  The  defendant's  counsel  further  moved  the  Court 
to  instruct  the  jury,  '  That  if  the  said  plaintiffs  were  entitled 
to  recover  from  the  said  defendant,  the  said  specific  price,  with- 
out completing  the  work  for  which  it  was  to  be  paid,  their 
right  to  sue  for  the  last  payment  in  said  agreement  mentioned 
did  not  accrue  until  four  months  after  they,  the  said  plaintiffs, 
did  the  last  work  on  said  mill,  in  pursuance  of  the  said  con- 
tract,' which  instruction  the  Court  also  refused  to  give.  To 
which  said  several  opinions  of  the  Court  the  said  defendant 
by  his  counsel  excepts,  and  prays  that  this  his  bill  of  exceptions 
may  be  signed,  sealed,  and  made  a  part  of  the  record. 

Exceptions  allowed. 
(Signed)  RICHARD  M.  YOUNG.     (L.  s.)" 

A.  WILLIAMS,  for  the  plaintiff  in  error. 

J.  W.  WHITNEY,  for  the  defendants  in  error. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court: 
This  is  a  writ  of  error  brought  here  from  the  Adams  Circuit 
Court,  to  reverse  a  judgment  of  that  Court.  The  case  stands 
thus :  After  all  the  evidence  had  been  closed,  the  defendant's 
counsel  moved  the  Court  to  instruct  the  jury,  "  That  the  com- 
pletion of  the  mill  is  a  condition  precedent ;  and  if  the  plaint- 
iffs have  failed  to  prove  the  performance  of  said  work,  they 
can  not  recover  the  specific  price  agreed  to  be  paid  by  said  con- 
tract for  said  services.  And  if  they  are  entitled  to  recover  al 
all,  they  can  not  recover  the  last  payment  until  four  months 


DECEMBER  TEEM,  1833.  109 

Bailey  v.  Campbell. 

from  the  time  the  plaintiffs  did  the  last  work  on  said 
mill " — which  instructions  *the  Court  refused  to  give.      [*110] 
It  is  very  clear  that  the  Court  below  erred  in  refus- 
ing to  give  the  instructions  called  for  by  the  defendant's  coun- 
.sel.     By  the  contract,  most  assuredly,  the  performance  of  the 
work  was  a  condition  precedent,  and  the  plaintiffs  below  bound 
themselves  to  wait  four  months  after  the  completion  of  the 
mill,  and  this  they  did  not  do.     This  Court  are  of  the  opinion 
that  the  judgment  below  be  reversed  with  costs,  and  the  cause 
remanded  to  the  Circuit  Court  of  Adams  county. 

Judgment  reversed. 


LEWIS  BATLEY,  administrator  of  Stephen  Benedict,  de- 
ceased, plaintiff  in  error,  v.  JAMES  B.  CAMPBELL, 
defendant  in  error. 

Error  to  La  Salle. 

ACTION  BY  ADMINISTRATOR  FOR  USE  AND  OCCUPATION. — In  order  to  en- 
able an  administrator  to  maintain  an  action  for  the  use  and  occupation  of  a 
farm,  the  plaintiff,  or  his  intestate,  must  have  been  the  owner  of  the  prem- 
ises, or  there  must  have  been  an  express  contract  on  the  part  of  the  defend- 
ant to  pay  rent. 

INSTRUCTIONS — WAIVER. — If  the  Court,  in  giving  instructions  to  the  jury, 
use  an  ambiguous  word,  but  at  the  same  time  the  language  of  the  statute, 
the  party  who  desires  more  explicit  instructions  upon  the  meaning  of  the 
term  should  ask  such  explanations  as  he  may  deem  necessary.  If  he  fail  to 
do  so,  it  is  too  late  to  complain  in  the  Supreme  Court. 

COSTS. — A  judgment  for  costs  can  not  be  rendered  against  an  administra- 
tor. 

THE  bill  of  exceptions  in  this  case  shows  that  Bailey,  the 
plaintiff  in  error,  made  improvements  upon  a  lot  of  public 
land,  by  cultivating  the  same  and  erecting  a  dwelling-house 
thereon,  previous  to  the  year  1829,  and  that  he  afterward  sold 
his  improvements  to  his  intestate.  The  intestate  leased  the  same 
for  one  year,  to  one  Bartholomew,  who  leased  the  same  to  one 
McKernan,  who  sold  the  improvements  to  the  defendant, 
Campbell,  who  occupied  and  improved  the  premises  during 
the  years  1829,  1830,  and  1831. 

The  cause  was  tried  at  the  April  term,  1831,  of  the  La  Salle 
Circuit  Court,  and  a  judgment  rendered  for  the  defendant,  for 
costs. 

The  instructions  given  to  the  jury  appear  in  the  opinion  of 
the  Court. 

05 


110  Y  AND  ALIA. 


Bailey  ».  Campbell. 


L.  BIOELOW,  for  the  plaintiff  in  error,  relied  upon  the  follow- 
ing points  and  authorities : 

1.  Where  a  lessee  continues  in  possession  after  the  expiration 
of. his  term,  he  may  be  treated  as  impliedly  agreeing  to  become 

tenant  from  year  to  year,  on  the  terms  of  the  original 
[*111]  lease,  and  *will  be  liable  to  the  lessor  in  an  action  for 

use  and  occupation,  upon  an  implied  contract.  2 
Blac.  Com.  147,  n.  3,  and  151,  n.  5  ;  1  Cruise's  Dig.  282 ; 
Chitty  on  Cont.  96 ;  Ellis  v.  Paige  et  al.,  1  Pick.  43  ;  Brewer 
v.  Knapp  et  al.,  do.  332 ;  Abeel  v.  Itaddiffe,  13  Johns.  297  ; 
same  v.  same,  15  do.  505  ;  2  Cornyn  on  Cont.  518. 

2.  An  under-lease,  or  conveyance  of  the  whole  term  by  the 
lessee,   amounts  to  an  assignment  of   the   lease.     Bac.  Abr. 
Leases,  etc.,  I,  3  ;  2  Blac.  Com.  327,  n.  (  57) ;  and  3  do.  171-2  ; 
4  Cruise's  Dig.  Ill  ;  Phillips  v.  Rothwell,  4  Bibb,  33 ;   Cox 
v.  Fenwick,  do.  528 ;  2  Saund.  Plead.  627. 

3.  If  a  term  be  assigned  by  the  lessee,  the  assignee  stands  in 
his  place,  and  is  liable  to  the  lessor   for  the  rent  in  the   same 
manner   and   to  the  same  extent  that  the  lessee   would  be. 
Benson  v.  Holies,  8  Wend.  175. 

4.  A  tenant  is  not  permitted  to  dispute  his  landlord's  title, 
whether  such  tenant  be  the  original  lessee  or  his  assignee. 
Chitty   on  Cont.  99  ;  2    Stark.  Ev.  533 ;  3  do.  1517  ;  2  Blac. 
Com.  327;  Phillips  v.  Rothwell,  4  Bibb,  33;  2   Pirtle's  Dig. 
37,  §§  3,  5,  7,  9. 

5.  An  action  for  use  and  occupation   may  be  maintained 
upon  an    implied,  as  well  as  on  an   ex  press,  contract.     Chitty 
on   Cont.  106,  n.  f,  and  107,   n.  (k);  3   Stark.  Ev.  1517;  2 
Oomyn  on   Cont.  512  et  seq.;  2   Saund.  Plead.  890-3,627; 
^sgood  v.  Dewey,  13  Johns.   240;  IIullv.  Vauyhan,  6  Price, 
157  ;  Jacks  v.  Smith,  1  Bay,  315  ;  Smith  v  .Sheriff,  do.  443  ; 
Calvert  v.  Simpsin,  1  J.  J.  Marsh,  548  ;  Stat.  Feb.  13,  1827, 
§  1.  (K.  L.  675;  Gale's  Stat.  435.) 

6.  A  person  who  has  made  or  bought  improvements  upon 
a  tract  of  public  land  which  entitle  him  to  a  pre-emption  un- 
der the  laws  of  the  United    States,  has  a  right  of  possession 
against  all  except  the  United  States,  and   may  be  regarded  as 
the  owner  of  the  land  within  the  act  concerning  landlords  and 
tenants.     1  Saund.  Plead.  454,  464  ;  2  do.  806  ;  Itoss  et  al.  v. 
Reddick,  ante,  73 ;  Davis  v.  Mason,  4  Pick.  156. 

7.  The  holding   over  of  a  lessee  or  his  assignee,  is  not  a 
disseizin  of  the  lessor,  unless  he  request  possession  and  it  be 
refused  him ;  and  not  even  then,  except  at  his   election,  he 


DECEMBEE  TEEM,  1833.  Ill 

•Bailey  v.  Campbell. 

Horde,  1  Burr.  60  ;  Ricard  v.  Williams  et  al.  7  Wheat.  59  ; 
Cometh  v.  Dudley,  10  Mass.  403. 

8.  The  death  of  a  lessor  does  not  operate  as  a  determination 
of  the  tenancy.     Chitty  on  Cont.  102,  103 ;  2  Blac.  Com.  150, 
n.  4  ;  1  Cruise's  Dig.  285,  255. 

9.  The  owner  of  improvements  on  public  land  has   no 
such  estate  as  will  descend  to  his  heir  ;  but  the  same, 
together  with  *the  rents  thereof,  will  belong  to  his     [*112] 
executor  or  administrator.     Perhaps  the  estate  is  a 

mere  chattel  interest.  Stat.  Feb.  15,  1831  (E.  L.  420  ;  Gale's 
Stat.  434);  Toller,  179,  437,  and  authorities  there  cited; 
Lombard  v.  JZuggles,  Amer.  Jurist,  xx,  485. 

T.  FORD  and  DAVIS,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  is  an  action  of  debt  for  the  use  and  occupation  of  a 
farm.  The  bill  of  exceptions  states  that  it  was  proved  or  ad- 
mitted on  the  trial,  that  the  farm  was  public  land  on  which 
improvements  had  been  made  and  sold  to  the  plaintiff's  intes- 
tate, who  leased  the  same  to  one  Bartholomew,  who  leased  the 
same  to  one  McKernan ;  and  that  McKernan  sold  the  im- 
provements to  the  defendant,  who  entered  and  occupied  the 
farm  ;  for  which  occupation  this  action  is  brought.  On  this 
state  of  facts,  the  judge  instructed  the  jury  that  u  the  plaintiff 
or  his  intestate  must  have  been  the  owner  of  the  land,  or  that 
there  must  have  been  an  express  contract  on  the  part  of  the 
defendant  to  pay  rent,  in  order  to  entitle  the  plaintiff  to  re- 
cover." To  which  instruction  the  plaintiff  excepted  The 
jury  returned  a  verdict  for  the  defendant,  and  judgment  was 
entered  thereon  against  the  plaintiff  for  costs.  To  reverse 
th?s  judgment,  the  cause  has  been  brought  to  this  Court  by 
writ  of  error. 

Was  the  instruction  wrong?  If  it  is  intended  to  support 
this  action  under  the  "  Act  concerning  Landlords  and  Ten- 
ants" the  instruction,  being  in  the  language  of  the  statute, 
was  right.  If  the  word  "  owner,"  as  used  in  the  statute,  is 
ambiguous,  it  was  the  duty  of  the  plaintiff  to  have  asked  for 
such  explanation  of  the  term  as  he  deemed  necessary ;  not 
having  asked  for  any  explanation,  it  is  too  late  to  complain  in 
this  Court.  Do  the  facts  render  the  instruction  wrong  at 
common  law  ?  In  order  to  maintain  an  action  at  common  law 
for  use  and  occupation,  it  is  necessary  to  prove  either  that  the 
defendant  entered  the  premises  by  permission  of  the  plaintiff, 
or  that  the  actual  relation  of  landlord  and  tenant  existed.  In 
this  cause  we  must  understand  from  the  case  that  the  im- 

VOL.  1-7  97 


112  YANDALIA. 


Bailey  v.  Campbell, 


provements  were  sold  to  the  defendant,  and  that  hepmchaaeU 
in  the  expectation  of  becoming  the  absolute  owner  of  the  im- 
provements, and  not  the  tenant  of  any  person.  Will  the  law 
presume  that  improvements  purchased  in  this  manner  created 
the  relation  of  landlord  and  tenant,  and  imply  that  the  en- 
trance of  the  defendant  was  by  permission  of  the  plaintiff  ? 
We  think  not ;  for  such  presumption  would  entirely  contra- 
dict the  facts  of  the  case.  If  the  proof  had  established  the 
fact  that  the  defendant  knew  when  he  purchased  the  im- 
provements in  question,  that  the  seller  was  a  tenant,  there  can 
be  no  doubt  that  under  such  a  state  of  the  case,  the 
[*113]  law  would  have  raised  every  ^necessary  presumption 
to  prevent  the  defendant  from  availing  himself  of 
his  own  want  of  good  faith,  to  defeat  the  action.  The  Court, 
therefore,  is  clearly  of  opinion,  that  the  facts  of  this  case 
would  not  have  justified  the  Court  in  charging  the  jury  that 
the  plaintiff  was  entitled  to  recover  without  proving  either  an 
express  contract  to  pay  rent,  or  an  admission  on  the  part  of 
the  defendant,  that  he  held  as  tenant  of  the  plaintiff.  In 
arriving  at  this  result,  the  Court  does  not  intend  to  deny  the 
doctrine,  that  "  a  tenant  is  not  permitted  to  dispute  his  land- 
lord's title  whether  such  tenant  be  the  original  lessee  or  his 
assignee,"  for,  in  our  opinion,  the  facts  do  not  warrant  the 
idea  that  any  such  relation  existed ;  nor  do  we  intend  to  con- 
trovert the  position  that  "  a  purchaser  can  not  obtain  a  better 
title  than  his  vendor  had."  This  doctrine,  however,  could  not 
in  this  case  raise  either  an  express  or  implied  promise  on  the 
part  of  the  defendant  to  pay  rent. 

Although  the  Court  does  not  perceive  any  error  in  the 
charge  of  the  judge,  yet  as  the  judgment  is  given  for  costs, 
it  must  be  reversed.  The  suit  was  brought  by  an  administra- 
tor, in  the  right  of  his  intestate.  In  such  a  caste  the  statute 
"  Concerning  Costs"  does  not  give  costs  against  the  plaintiff. 

For  this  error,  the  judgment  must  be  reversed  so  far  as 
giving  costs  is  concerned  and  affirmed  in  other  respects.  The 
costs  of  this  Court  are  divided  between  the  parties. 

Judgment  reversed,  and  judgment  rendered  in  this  Court. 

98 


DECEMBEK  TERM,  1833.  113 

Carson  v,  Clark. 

JOHN  CABSON,  appellant,  v.  WILLIAM  CLABK,  appellee. 

Appeal  front  Sangamon. 

PRACTICE — FORMER  ADJUDICATION — WHEN  A  BAR. — In  order  to  bar  a 
subsequent  action  before  a  justice  of  the  peace,  on  the  ground  that  a  prior 
suit  between  the  same  parties  has  been  determined  by  a  justice,  it  must  be 
shown  that  the  demands,  in  both  suits,  were  of  such  a  nature  that  they  might 
be  consolidated  into  one  action,  and  that  the  first  suit  was  tried. 

CONTRACT — CONSIDERATION. — To  constitute  a  valid  contract  it  must  be 
made  by  parties  competent  to  contract,  and  be  founded  on  a  sufficient  con- 
sideration. If  th«  consideration  be  passed  and  executed  it  can  then  be  en- 
forced only  upon  the  ground  that  the  consideration  or  service  was  rendered 
at  the  request  of  the  party  promising. 

PUBLIC  LAND — IMPROVEMENTS. — A  promise  to  pay  for  improvements 
made  upon  the  public  lands  will  not  bind  the  promisor  if  made  after  the  pur- 
chase of  the  same. 

A  purchaser  of  land  from  the  government  is  under  no  moral  or  legal  ob- 
ligation to  pay  for  improvements  made  thereon  before  his  purchase  and 
without  his  request. 

PRE-EMPTION  LAWS. — The  pre-emption  laws  of  the  U.  S.  can  not  be  con- 
strued as  invitations  to  settle  upon  the  public  lands. 

THE  appellee,  William  Clark,  brought  an  action  against  the 
appellant,  before  a  justice  of  the  peace  of  Sangamon 
county,  which  *was   appealed   to  the  Circuit   Court, 
where  a  judgment  was  rendered  in  favor  of  the  ap- 
pellee for  $69.87. 

The  cause  was  tried  at  the  April  term,  1830,  before  the  Hon. 
Samuel  D.  Lockwood. 

J.  SEMPLB,  for  the  appellant. 
,      S.  T.  LOGAN,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 
The  bill  of  exceptions,  or  rather  demurrer  to  evidence,  in 
this  case  presents  this  state  of  facts. 

The  plaintiff  below  made  an  improvement  on  the  land  of 
the  United  States,  which  the  defendant  afterward  purchased 
of  the  government,  and,  after  tlie  purchase,  promised  the  plaint- 
iff to  pay  him  the  value  of  his  improvements.  It  further 
appears  from  the  evidence  that  the  plaintiff  had,  prior  to  the 
commencement  of  this  suit,  instituted  an  action  before  a  justice 

CITED  :  Suit  in  Justice  Court— When  a  bar :  42  111.  305  ;  57  111. 
282  ;  90  111.  463.  See  Starr  &  C.  111.  Stat.  1448,  notes  Ch.  79,  J  49;  also 
post  213.  Enforcement  of  laws  of  Congress,  17  111.  313.  Promise  by  pur- 
chaser to  pay  for  improvements  made  on  public  land  prior  to  purchase,  1 
Scam.  170,  179,  396,  473  ;  4  Scam.  535  ;  16  111.  62. 

99 


1U  VAKDALIA. 


Carson  v.  Clark. 


of  the  peace,  upon  another  demand,  without  having  joined  this 
one  with,  it,  though  it  was  at  the  time  a  subsisting  demand. 
The  first  suit  was  never  tried'  but  was  compromised  by  the 
parties  and  dismissed. 

Upon  tliis  evidence  the  Court  below  gave  judgment  in  favor 
of  the  plaintiff  for  the  value  of  the  improvements. 

The  h'rst  error  assigned  to  reverse  this  decision  is  that  the 
first  suit  commenced  by  the  plaintiff  is  a  bar  to  this  action. 
To  support  this  assignment  of  error  it  must  appear  that  the 
first  suit  was  tried;  otherwise  it  will  not  be  a  bar  to  a  subse- 
quent action ;  and  it  must  also  be  shown  that  the  demands 
were  of  such  a.  nature  that  they  might  be  consolidated  into  one 
action.  Neither  of  these  points,  are  made  out  by  the  evidence  ; 
and  as  the  defendant  holds  the  affirmative  of  the  issue  as  to 
this  ground  of  defense  it  was  incumbent  upon  him  to  make 
them  out  The  suit  was,  dismissed  without  trial,  and  there  is 
no  evidence  as  to  the  extent  of  the  demands  in  either  suit. 
The  court  can.not  supply  this  defect  and  by  implication  impose 
upon  the  party  a  forfeiture  of  his  claim  or  take  from  him  the 
right  of  prosecuting  it  in  the  ordinary  way. 

The  second  assignment  of  eri'or  presents  this  question : 
Was  the  promise  of  the  defendant  founded  on  a  sufficient  con- 
sideration ?  or,  was  it  not  made  withput  any  such  considera- 
tion, and  therefore  void  ? 

To  constitute  a  valid  contract  it  must  be  made  by  parties 
competent  to  contract,,  and  be  founded  on  a  sufficient  consider- 
ation. If  the  consideration  for  the  promise  be  past  and  ex- 
ecuted, it  can  then  be  enforced  only  upon  the  ground  that  the 
consideration  or  service  was  rendered  at  the  request  of  the 
party  promising.  This  request  must  be  averred  and 
[*115]  proved,  or  the  moral  obligation  *under  which  the 
party  was  placed,  and  the  beneficial  nature  of  the  serv- 
ice, must  be  of  such  a  character  that  it  will  necessarily  be  im- 
plied— aa  a  promise  by  a  master  to  pay  his  servant  for  past 
services.  Here  the  inference  is  strong  that  the  service  was 
rendered  at  his  request. 

Or  if  a  debt  is  due  in  conscience,  a  promise  to  pay  will  be 
binding;  as  where  a  father  promised  to  pay  for  the  mainte- 
nance of  a  bastard  child.  So,  too,  a  promise  founded  upon  an 
antecedent  legal  obligation  will  be  valid,  as  a  promise  to  pay  a 
debt  barred  by  the  statute  of  limitations.  Here  the  legal  ob- 
ligation is  voidable  but  the  moral  duty  remains  unimpaired, 
and  constitutes  a  good  consideration.  Test  the  present  case 
by  the  broad  principle  to  be  deduced  from  the  examples  cited, 
and  where  will  be  found  any  legal  or  moral  obligation  on  the 
part  of  the  defendant  to  constitute  a  sufficient  consideration  for 
100 


DECEMBER  TERM,  1833.  115 

Carson  v.  Clark. 

his  promise  ?  The  plaintiff  entered  upon  and  improved  the 
land  of  the  government.  The  motive  by  which  he  was  actu- 
ated in  doing  so  was  entirely  selfish,  and  the  act  itself  unau- 
thorized by  law.  The  defendant  was  at  the  time  a  stranger 
to  the  transaction  ;  he  had  no  interest  in  the  land  and  was  no 
more  benefited,  nor  for  aught  that  appears  more  likely  to  be 
benefited  by  it,  than  any  other  person.  A  request  then  can 
Dot  be  inferred  in  the  absence  of  all  motive,  and  the  request 
must  be  made,  or  the  circumstances  from  which  it  is  to  be  im- 
plied must  exist  prior  to,  or  be  concurrent  with,  the  act  which 
constitutes  the  consideration.  Whatever  benefit  might  accrue 
to  the  plaintiff  by  reason  of  the  improvements  upon  the  land 
he  acquired  by  purchase  from  the  government,  he  did  not  re- 
cei'rtj  from  the  defendant,  by  virtue  of  his  promise,  either  title 
or  possession.  The  land,  with  the  improvements  thereon,  passed 
to  him  by  the  sale  from  the  government.  His  promise,  then, 
to  pay  for  that  for  which  he  had  already  paid,  and  to  which  he 
had  received  a  perfect  title,  was  without  any  consideration. 

If  there  is  a  moral  obligation  on  the  part  of  any  one  to 
make  compensation  to  the  plaintiff  for  the  value  of  his  im- 
provements, it  is  on  the  part  of  the  government,  and  under 
this  view  of  the  case  it  is  contended  that  the  defendant,  as 
alienee  of  the  land,  incurred  all  the  obligation  and  liability  of 
the  government,  his  alienor.  But  there  is  no  principle  upon 
which  this  position  can  be  maintained.  It  is  true  there  are 
some  covenants  which  run  with  the  land  ;  but  between  such 
and  the  promise  here  set  up  there  is  not  one  point  of  analogy. 
A  purchaser  from  the  government  has  not  entailed  upon  him 
other  or  greater  incumbrances  or  liability  than  he  would  be 
subject  to  in  purchasing  from  an  individual.  Suppose  then 
that  in  the  present  ca%se  the  improvements  had  been  made 
at  the  special  instance  and  request  of  the  alienor.  This 
would  have  imposed  upon  him  a  legal  obligation  to  make  an 
adequate  compensation,  but  surely  his  alienee  would 
*  incur  no  such  obligation.  If  then  this  legal  liability  [*116] 
would  not  be  imposed  by  a  transfer  of  the  land  it  fol- 
lows conclusively  that  a  moral  duty  which  is  regarded,  both  in 
law  and  ethics,  asentirely  personal,  would  not  flow  from  it.  If, 
however,  it  should  be  considered  that  the  defendant  was  under 
the  same  obligation  as  his  alienor,  would  it,  when  coupled 
with  his  subsequent  promise,  impose  upon  him  a  legal  obliga- 
tion? 

To  determine  this  question  it  is  necessary  to  inquire  whether 
there  are  any  acts  on  the  part  of  the  government  from  which 
a  request  to  enter  upon  and  occupy  the  public  land  is  to  be 
implied,  or  whether  the  act  itself  can  be  regarded  as  merito- 

101 


116  VANDALIA. 


Carson  v.  Clark. 


rious.  As  to  the  first  branch  of  the  inquiry  it  is  said  that  the 
pre-emption  laws  which  have  been  passed  from  time  to  time 
amount  to  a  license  and  invitation  to  enter  upon  and  occupy 
the  land  of  the  government.  There  would  be  much  force  in 
this  reasoning  if  these  acts,  granting  a  prior  right  of  purchase 
to  the  occupant,  were  all  the  legislation  relative  to  the  public 
lands.  But  they  are  not.  "Whatever  presumption  they  may 
afford  in  favor  of  a  license  by  the  government  is  met  and  re- 
butted by  the  fact  that  there  is  a  general  law  of  Congress 
which  has  been  in  force  since  the  year  1807,  forbidding,  under 
severe  penalties,  all  intrusion  upon  the  public  lands.  And  I 
understand  that  in  pursuance  of  the  instructions  of  the  com- 
missioner of  the  General  Land  Office  this  law  has  been  enforced 
in  numerous  instances.  These  pre-emption  laws  then  can  be 
regarded  in  no  other  light  than  as  acts  of  grace,  exempting 
such  as  at  the  time  come  within  their  provisions  from  penal- 
ties which  they  had  previously  incurred,  but  not  as  repealing 
or  abrogating  the  general  prohibition.  If,  then,  there  is  no 
license  to  settle  upon  the  public  lands,  but  on  the  contrary  it 
is  forbidden,  can  the  act  of  doing  so  be  considered  meritorious 
or  of  that  beneficial  nature  which  would  impose  a  moral  duty 
on  the  government  ?  It  is  not  every  benefit  that  may  result 
to  one  from  the  act  of  another  that  will  create  this  duty  either 
in  morality  or  conscience.  The  nature  of  the  benefit,  the 
manner  in  which  it  is  conferred  or  the  motive  which  induced 
it  may  be  repugnant  to  the  feelings  and  wishes  of  the  person 
who  is  benefited  thereby.  And  no  principle  of  law  will  sanc- 
tion the  idea  that  a  moral  obligation  can  be  imposed  upon 
another  against  his  will.  All  the  circumstances  of  the  trans- 
action must  be  of  such  a  nature  as  pre-suppose  a  request,  other- 
wise it  will  not  be  a  good  consideration  for  a  promise.  The 
case  cited,  where  one  man  shot  another  with  the  intention  of 
killing  him,  but  so  far  from  succeeding  in  his  design  the 
wound  cured  him  of  the  dropsy  with  which  he  was  at  the  time 
afflicted,  is  an  illustration  of  the  principle  that  a  benefit  may 
be  conferred  without  creating  a  moral  or  legal  obligation  to 
pay  for  it. 

Under  every  aspect  of  the  case  I  am  of  opinion  that 
[*117]     the  *promise  of  the  defendant  below  was  not  founded 
on  any  legal  or  moral  obligation  which  is  recognized 
as  constituting  a  sufficient  consideration  for  such  a  promise. 
The  judgment  of  the  Court  below  is  reversed  with  costs. 

Judgment  reversed. 

LOCKWOODJ  J.,  dissented. 
102 


DECEMBER  TERM,  1833.  117 

Clark  v.  The  People. 


REUBEN  CLAET-T,  plaintiff  in  error,  v.  THE  PEOPLE   OF 
THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error    to  Hamilton. 

CRIMINAL  LAW — CHANGE  OP  VENUE. — A  prisoner  is  entitled  to  a  change 
of  venue,  whenever  by  petition  verified  by  affidavit  he  brings  himself  within 
the  requisitions  of  the  statute.  The  obligation  of  the  judge  to  allow  it,  is  im- 
perative, and  admits  of  the  exercise  of  no  discretion. 

ARSON — INDICTMENT. — The  value  of  the  property  burned  must  be  stated 
in  an  indictment  for  arson. 

THIS  action  was  tried  at  the  March  term,  1833,  of  the 
Hamilton  Circuit  Court,  before  the  Hon.  Thomas  C.  Browne. 

The  jury  returned  a  verdict  of  guilty  against  Reuben  Clark, 
the  plaintiff  in  error,  and  the  Court  gave  sentence  that  he 
should  be  imprisoned  in  the  county  jail  three  weeks,  pay  a 
fine  of  §360  and  the  costs  of  the  prosecution,  and  that  he  should 
be  publicly  whipped  thirty-nine  lashes  on  his  bare  back. 

The  errors  assigned  are  : 

1.  The  refusal  of  the  Court  to  grant  a  change  of  venue. 

2.  The  refusal  of  the  Court  to  quash  the  indictment. 

WALTER  B.  SCATES,  for  the  plaintiff  in  error,  made  the  fol- 
lowing points,  and  cited  the  annexed  authorities  : 

1.  The  indictment  does  not  charge  the  crime  to  have  been 
committed  with  a  felonious  intent. 

2.  It  does  not  state  the  value  of  the  property  burned. 

3.  There  is  error  in  the  judgment  of  the  Court  in   over- 
ruling the  defendant's  motion  for  a  change  of  venue. 

At  common  law  the  venue  must  be  laid  where  the  offense 
was  committed.  1  Chit.  C.  L.  177,  178  ;  4  Blac.  Com.  303.  i 
And  at  common  law  the  venue  was  matter  of  substance. 
1  Chit.  C.  L.  177.  And  so  strict  was  the  law  in  this  respect, 
that  where  an  offense  was  commenced  in  one  county  and 
consummated  in  another,  it  could  be  tried  in  neither  (except 
some  crimes,  as  larceny  in  some  cases).  1  Chit.  C.  L.  178  ; 
4  Blac.  Com.  303. 

But  this  strictness  has  been  remedied  by  statutes,  so  that 
the  defendant  may  be  tried  where  the  death  happened,  or  the 
guilt  was  contracted,  or  the  offense  consummated,  or  where 
the  offender  was  apprehended,  or  in  the  adjacent  county,  or  in 

'  CITED:  Change  of  venue.  1  Scam.  454,  455;  2  Gilm.  43;  89  111.  95.  See 
Starr  &  C.  111.  Stat.  2454  ef  se.q.  Ch.  146,  Tf  18  et  seq.  Description  of 
offense  in  indictment,  14  111.  499. 

103 


117  YANDALIA. 


Clark  v.  The  People. 


any  county.  1  Chit.  C.  L.  179,  180,  181,  182.  But 
[*118]  notwithstanding  *this  great  strictness  of  the  common 

law,  the  Court  possessed  a  discretionary  power  to 
change  the  venue  when  a  fair  and  impartial  trial  could  not  be 
had  in  the  county.  1  Chit.  C.  L.  201,  327,  494,  495.  The 
courts  at  common  law  possessed  the  like  power  in  civil  cases. 

1  Tidd's  Pr.  548-9.     A  certiorari  lay  at  common  law  to  re- 
move an  indictment  at  any  time  before  trial,  which  was  one 
mode  of  changing   the  venue.     1  Chit.  C.  L.  327,  371,  378. 
4  Blac.  Com.  320,  321.     See  further  as  to  venue,  2  John.  Dig. 
276,  278. 

Penal  statutes  must  be  construed  strictly,  and  in  favor  of  life 
and  liberty.  4  Blac.  Com.  86,  89,  and  notes  ;  4  Blac.  Com. 
373,  240  (note  10),  375-6,  397, 401 ;  1  Chit.  C.  L.  218  ;  Foster's 
C.  L.  78,  355-8.  1  Am.  Dig.  269 ;  2  Am.  Dig.  285,  495  ;  2 
East,  C.  L.  592-3,  614-15,  629  ;  Stat.  10,  11  Wm.  642-3, 
1099. 

In  capital  cases,  the  defendant  stands  upon  all  his  rights, 
and  can  not  consent  to  his  prejudice.  Bi-eese,  109.  Foster, 
126,  355-6 ;  and  by  the  Constitution  of  this  State,  an  impar- 
tial trial  by  jury  is  secured  to  every  man.  §  9,  Article  8. 
See  also  Foster  C.  L.  398.  And  the  statute  providing  the 
mode  of  changing  the  venue  is  peremptory  that  the  court 
shall  award  a  change  when  the  application  is  made  in  the 
mode  and  for  the  causes  set  out  in  the  statute.  (R.  L.  607  ; 
Gale's  Stat.  682.) 

There  is  error  in  the  judgment  of  the  Court  in  overruling 
the  defendant's  motion  to  quash,  and  sustaining  the  indict- 
ment. 

Arson  is  felony  at   the  common  law,  4  Blac.  Com.  94,  221- 

2  ;  2  East  C.  L.  1015,  1021,  and  must  be  malicious.     4  Blac. 
iCom.  222  ;  2  East,  C.  L.  1019,  1033. 

The  criminal  intention  must  accompany  the  act,  and  from 
the  intention  alone  is  it  determinable  whether  the  act  be 
criminal  or  innocent.  It  is  alone  punishable,  being  the  very 
gist  of  the  charge,  and  certain  technical  words  alone  express 
that  intention  according  to  the  different  degrees  of  guilt,  and 
they  can  not  be  supplied  by  any  circumlocution  or  inference. 
1  East,  C.  L.  446-7.  As  in  burglary,  a  mere  breaking  and  en- 
try does  nut  constitute  and  complete  the  offense,  but  it  is  nec- 
essary to  charge  and  prove  a  felonious  intent,  and  that 
charge  is  contained  alone  in  the  words  burglariously  and  felo- 
niously. 1  Chit.  C.  L.  172,  242-3  ;  4  Blac.  Com.  307,  338-9  ; 
Foster's  C.  L.  108  ;  2  East,  C.  L,  513-14,  778,  816, 1015, 1021, 
1028-9,  1033. 

The  same  doctrine  applies  to  other  felonies. 
101 


Not  guilty  puts  in  issue  not  only  th 
le  party,  and  feloniously  in  felony  is 


DECEMBER  TERM,  1833.  118 

Clark  v.  The  People. 

the  facts  but  the  intent  of 

the  party,  and  feloniously  in  felony  is  the  gist  of  the  charge. 
4  Blac.'Com.  338-9;  Breese,  197,  198,  199;  1  Chit.  C.  L. 
471-2,  242,  245,  251a. 

Felonies  must  be  charged  to  be   committed  feloniously  / 
but  if  an  act  be  charged  to  be  committed  feloniously, 
and  it  amount  to  *a  trespass  only,  the  indictment  will     [*119] 
be  bad.     1  Chit.  C.  L.  172, 242, 245  ;  1  East,  C.  L.  346 ; 
4  Blac.  Com.  307,  334. 

If  a  statute  create  an  offense,  or  changes  a  common  law 
offense,  or  alters  the  punishment,  to  inflict  the  statutory  punish- 
ment, its  language  must  be  pursued  in  describing  the  offense  ; 
and  it  must  likewise  possess  the  common  law  requisites  in 
charging  the  intent.  1  Chit.  C.  L.  281,  276,  282,  218  ;  1  Hale 
P.  C.  174 ;  4  Blac.  Com.  208,  307,  338  ;  Bac.  Abr.  Indict.  G. 
1 ;  1  East  C.  L.  346,  414,  412-15-20;  2  East  C.  L.  576-7,  706, 
985,  1006-7 ;  1106-7,  116-7  ;  Breese,  197. 

The  same  rules  apply  to  indictments  under  statutes  as  at  com- 
mon law.  1  Chit.  C.  L.  275  et  seq. 

And  all  the  precedents  at  common  law  and  under  statutes, 
support  this  doctrine.  4  Blac.  Com.  307,  335,  338-9,  347,  and 
appendix  2,  4  ;  1  East  C.  L.  346,  345,  414,  412,  415-20  ;  2  East 
C.  L.  512,  513,  783,  979,  987,  1007,  1021,  1034;  1  Chit.  C.  L. 
172,  242  ;  Breese,  197-9. 

Acts  derogatory  to  the  common  law,  are  construed  strictly. 
IBlac.  Com.  89. 

Our  statute  has  not  repealed  the  common  law  in  its  tech- 
nicality in  charging  the  intent  to  determine  the  degree  of 
guilt ;  but  if  at  all,  only  in  the  description  of  the  offense  or 
acts  that  constitute  it.  C.  Code,  §§  58,  152;  1  East  C.  L.  412, 
414-20  ;  2  East  C.  L.  577;  804-5,  1061-2  ;  and  the  defendant 
can  not  be  convicted  of  felony  under  this  indictment,  but  only 
of  a  misdemeanor.  1  Chit.  C.  L.  637-8  ;  2  East  C.  L.  1030-31; 
R.  L.  C.  Code,  §  59 ;  for  the  indictment  can  not  be  amended. 
1  Chit.  C.  L.  279  ;  1  Stark.  Ev.  252-3;  1  Same,  250,  A.  E.  note 
1 ;  R.  L.  67,  §  14. 

All  the  rules  (with  that  exception,  etc.)  that  apply  to  civil 
pleadings,  apply  with  greater  strictness  to  criminal ;  and  an  in- 
dictment should  be  as  clear,  explicit  and  certain  as  a  declara- 
tion. 1  Saund.  250  d.  e.  note  1;  1  Stark.  252-255 ;  1  Chit.  PI. 
216-257,  255  ;  4  Blac.  Com.  306-7,  and  notes  ;  1  Chit  C.  L. 
169-175,  280-1  ;  Breese,  4. 

The  indictment  is  defective  in  not  stating  the  value  of  the 
property,  as,  if  the  property  be  valueless,  it  would  be  no 
offense,  the  law  requiring  the  Court  to  pronounce  ji  dgment 
of  tine  at  least  to  the  amount  of  the  value  of  the  jroperty. 

105 


119  VANDAL!  A. 


Clark  v.  The  People. 


K.  L.  133,  §  58 ;  2  East  C.  L.  778  ;  1  Stark.  Ev.  252-55  ;  1 
Chit.  PI.  216-37,  255 ;  4  Blae.  Com.  306-7,  and  notes ;  1  Chit. 
C.  L.  169-175,  280-1  ;  1  Saund.  250  d.  e.  note  1 ;  Breese,  4. 

Where  several  are  indicted  together,  and  the  joint  prosecu- 
tion appears  oppressive,  the  Court  may  in  its  discretion  quash 
the  indictment.  1  Chit.  C.  L.  269 ;  for  it  does  not  deprive 
them  of  any  right,  not  even  of  their  full  number  of  challenges. 
IChit.  C.  L.  535  ;  and  if  they  refuse  to  join  in  their  challenge^ 
they  must  be  tried  separately  ;  Ibidem  /  Foster's  C.  L.  21 
106-7. 

[*120]     *J.  SEMPLE,  Attorney  General,  for  the  defendants  in 
error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

The  plaintiff  in  error  was  indicted  with  three  others  for  the 
crime  of  arson.  Upon  the  calling  of  the  cause,  he  moved  the 
Court  for  a  change  of  venue.  The  motion  was  founded  on  an 
affidavit  in  the  usual  form,  and  assigned  for  cause,  that  he  could 
not  receive  a  fair  trial  in  the  county  in  which  the  cause  was 
pending,  because  of  the  prejudice  of  the  minds  of  the  inhabit- 
ants of  said  county  against  him.  One  of  the  other  persons 
included  in  the  same  indictment  was  arrested,  but  did  not  join 
in  the  motion  for  a  change  of  venue.  The  motion  was  over- 
ruled by  the  Court.  A  motion  was  then  made  to  quash  the 
indictment,  which  was  also  overruled,  and  exceptions  taken  to 
the  opinion  of  the  Court  on  both  the  motions. 

The  decision  of  the  Court  on  the  first  motion  was  clearly 
erroneous.  The  Constitution  secures  to  every  person  charged 
with  an  indictable  offense  a  trial  by  jury,  and  in  order  that 
this  trial  may  be  a  fair  and  impartial  one,  the  law  has  given 
to  the  accused  many  privileges,  and  amongst  these  the  right 
to  a  change  of  venue  is  in  some  instances  the  most  important ; 
and  when,  by  petition,  verified  by  affidavit,  the  accused  brings 
himself  within  the  requisitions  of  the  statute,  the  obligation  of 
the  judge  or  court  to  allow  it  is  imperative,  and  admits  of 
the  exercise  of  no  discretion  on  account  of  any  supposed  incon- 
venience that  may  result  from  the  exercise  of  the  privilege. 

It  is  argued  that  if  the  venue  should  be  changed  on  the  ap- 
plication of  one  of  several  defendants  indicted  jointly,  it  would 
be  difficult,  if  not  impossible,  to  try  the  others,  as  the  indict- 
ment would  have  to  be  sent  to  the  adjoining  county  with  the 
accused.  It  is  unnecessary  to  inquire  whether  any  or  what 
inconvenience  may  arise  from  a  change  of  venue  under  such 
circumstances.  Whatever  it  might  be,  can  be  avoided  by  pre- 
ferring separate  indictments  against  each.  This  practice,  I  am 
10, 


DECEMBER  TERM,  1833.  120 

Clark  v.  The  People. 

aware,  is  unusual,  but  it  is  better  upon  every  principle  of  jus- 
tice that  it  should  be  adopted,  than  that  the  State's  Attorney 
should,  by  his  own  act,  be  permitted  to  withhold  from  a  party 
an  important  privilege  which  has  been  secured  to  him  by  the 
law,  as  one  of  the  means  of  obtaining  impartial  justice. 

The  next  inquiry  is  whether  the  Court  erred  in  overruling 
the  motion  to  quash  the  indictment,  and  in  afterward  render- 
ing judgment  upon  the  verdict  of  the  jury. 

The  indictment  does  not  allege  the  value  of  the  building 
charged  to  have  been  burned.  This  would  probably  be  un- 
necessary at  common  law,  as  a  fine  formed  no  part  of  the  pun- 
ishment for  the  offense.  The  statute,  however,  under  which 
the  indictment  is  found,  has  changed  the  common  law 
in  this  respect ;  a  *fine  equal  in  value  to  the  property  [*121] 
burned,  is  imposed  as  part  of  the  punishment  for  the 
offense.  The  indictment,  then,  should  have  charged  the 
value  of  the  property  destroyed,  otherwise  it  could  not  prop- 
erly have  been  inquired  into  by  the  jury.  It  would  form  no 
part  of  the  issue  which  they  were  sworn  to  try.  In  this  re- 
spect, then,  the  indictment  is  defective;  and  the  Court  erred  in 
overruling  the  motion  to  quash  it,  and  in  rendering  judgment 
upon  the  verdict  of  the  jury. 

There  are  other  exceptions  taken  to  the  sufficiency  of  the 

indictment,  but  it  will  be  unnecessary  to  notice  them,  as,  for 

the  reasons  already  assigned,  the  judgment  of  the  Court  below 

must  be  reversed,  and  the  prisoner  ordered  to  be  discharged. 

Judgment  reversed,  and  prisoner  discharged. 

107 


DECISIONS 


OF  THH 


SUPREME  COURT 


STATE  OF  ILLINOIS, 


DELIVERED 


DECEMBER  TERM,  1834,  AT  VANDAL1A. 

JOHN  MITCHELTREE,  appellant,  v.  MATTHEW  SPARKS, 

appellee. 

Appeal  from  Schuyler. 

MISTAKE  IN  RECORD — CORRECTION. — A  mistake  in  making  up  the  record 
of  a  cause  may  be  corrected  at  a  term  subsequent  to  that  at  which  the  same 
was  disposed  of. ' 

The  name  "  Nathan"  was  erased,  and  "Matthew  "  inserted  in  a  record 
at  a  subsequent  term. 

At  the  December  term,  1833,  of  this  Court,  the  judgment 
of  the  Court  below  was  reversed  by  default;  but  in  making  up 
the  record,  the  name  "Nathan  Sparks"  had  been  inserted  in 
the  place  of  "  Matthew  Sparks,"  wherever  the  name  of  the 
appellee  occurred. 

At  this  term  of  the  Court  comes  the  said  appellant,  by  Ford, 
his  attorney,  and  suggests  to  the  Court  that  in  the  entry  of  the 
order  made  at  the  last  term  of  this  Court,  there  is  error  in  this : 
That  the  name  of  the  said  appellee  is  written  "Nathan  Sparks," 
whereas  it  should  have  been  written  "  Matthew  Sparks,"  and 
enters  a  motion  to  amend  accordingly ;  and  it  appearing  to 
the  Court,  by  an  inspection  of  the  record  aforesaid,  that  such 
error  exists,  it  is  therefore  considered  by  the  Court  that  said 
motion  be  granted,  and  the  order  aforesaid  amended  in  con- 

CITED:    16  111.  159;  See  24  111.  295. 

108 


DECEMBER  TERM,  1834.  122 

,   The  People  v.  Lamborn. 

formitj  therewith,  and  that  a  copy  of  said  order  as  amended 
together  with  a  copy  of  this  order,  be  certified  to  the  Circuit 
Court  of  Sehuyler  county. 


*THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS,  ex     [*123] 
relatione  Julius  C.  Wright  v.  JOSIAH  LAM- 
BORN,  an  attorney  and  counselor  at  law. 

POWER  OP  ATTORNEY — BREACH  OF  CONFIDENCE. ^A.  lawyer  employed 
to  defend^  a  suit  is  not  authorized  to  consent  to  the  entry  of  a  judgment 
against  his  client,  without  his  assent.  His  doing  so  is  a  violation  of  the 
confidence  reposed  in  him,  and  if  done  with  a  corrupt  intent  involves  such 
a  degree  of  moral  turpitude  as  would  authorize  the  court  to  strike  his  name 
from  the  roll  of  attorneys.* 

ALTERATION  OF  PROCESS. — An  alteration  of  the  process  of  the  court,  be- 
tween its  delivery  by  the  clerk  to  the  party  or  his  attorney,  and  its  recep- 
tion by  the  sheriff,  is  illegal  and  highly  improper. 

STRIKING  ATTORNEY'S  NAME  FROM  ROLL— PRACTICE. — In  general,  where 
the  complainant  is  not  the  person  injured,  application  for  a  rule  against  an 
attorney  to  show  cause  why  his  name  should  not  be  stricken  from  the  roll, 
should  be  based  upon,  the  affidavit  of  some  person  who  shall  affirmatively 
allege  the  truth  of  the  charges  preferred  against  the  attorney,  and  not 
merely  his  belief  in  the  truth  from  the  information  of  others.* 

THIS  was.  a  rule  against  Josiah  Lamborn,  an  attorney  and 
counselor  of  the  Supreme  Court,  to  show  cause  why  his  name 
should  not  be  stricken  from  the  roll  of  attorneys. 

Julius  C.  Wright,  the  relator,  filed  an  affidavit  in  the  nature 

CITED:    19  III.  452;  73  III.  426.    Sae  41  111.  277. 

^Attorney  and  client — General  anthorify  of  attorney. 

Striking  from  roll.  See  1  Starr  &  C.  111.  Stat.  343,  ch.  13,  1[  6,  and 
authorities  cited. 

An  attorney  can  not,  under  his  general  authority,  consent  to  the  entry  of 
a  judgment  against  his  client,  without  his  assent.  In  addition  to  the  above 
case  of  People  v.  Lamborn,  see  Vickery  v.  McClellan,  61  111.  311;  Wadhams 
v.  Gay,  73  111.  415;  Dobbins  v.  Dupree,.  39  Ga.  394;  Lyon  w.  Williams,  42 
Ga.  168;  Anderson  v.  Sutton,  2  Duv.  480;  Lewis  ».  Gamage,  1  Pick.  347. 

Nor  can  he  assign  a  judgment.  Rowland  v.  State,  58  Pa.  St.  196;  Head 
v.  Gervais,  Walk.  (Mich.)  431. 

Nor  enter  a  retraxit.    Lambert  v.  Sanford,  2  Blackf.  137. 

Nor  waive  a  complete  answer  to  a  bill  for  discovery.  Ball  v.  Leonard, 
24  111.  146. 

Nor  compromise  a  debt,  give  day  of  judgment,  receive  a  less  amount  or 
anything  but  money  in  satisfaction.  Nolan  v.  Jackson,  16  111.  272,  and 
authorities  cited. 

Nor  receive  depreciated  money  in  satisfaction  of  a  judgment.  Trumbull 
t>.  Nicholson,  27  111.  149. 

Nor  release  a  garnishee  from  his  attachment.  Quarles  v.  Porter,  12  Mo. 
76. 

Nor  admit  service  for  his  client  of  original  process:  Masterson  ».  Le 
Claire,  4  Minn.  163;  Hunt  v.  Brennan,  1  Hun,  213. 

109 


123  YANDALIA. 


The  People  v.  Lamborn. 


of  an  information,  in  this  Court,  against  the  defendant,  con- 
taining five  distinct  charges  of  rnal-conduct  in  office,  as  an 
attorney  and  eoun.^or  at  law. 

The  first  alleged  that  ono  Benjamin  Green  recovered  a  judg- 
ment before  a  justice  of  the  peace,  of  Morgan  county,  against 
the  relator,  and  that  by  the  advice  of  Lamborn  he  appealed 
said  cause  to  the  Circuit  Court,  and  employed  .him  to  conduct 
his  defense  ;  that  Lamborn,  so  far  from  comply  ing  with  his  duty 
as  attorney  for  Wright,  "corruptly  agreed  with  one  Washing- 
ton AVeeks  (the  person  who  claimed  the  right  and  ownership 
of  said  judgment),  and  Avithout  the  knowledge  or  consent  of 
the  said  Wright,  but  for  the  purpose  of  obtaining  a  compromise 
of  other  matters  with  the  said  Weeks,  in  which  the  said  Lam- 
born was  interested,  but  in  which  the  said  Wright  had  no 
interest,"  etc.,  etc.,  that  "the  said  judgment  of  said  justice  of 
the  peace  should  be  affirmed." 

The  second  charged  the  defendant  with  deserting  his  client 
after  having  received  a  retainer,  and  going  over  to  his  client's 
adversary,  and  assisting  him  to  defraud  his  client. 

The  third  was  for  altering  the  date  of  an  execution  from 
the  26th  day  of  June  to  the  26th  day  of  July;  and  agreeing 
with  the  defendant,  for  his  own  gain,  to  delay  the  collection 
of  his  client's  debt,  upon  the  defendant  in  the  execution  pay- 
ing him  twenty -five  per  contum  per  annum  interest  on  the 
amo'int  of  the  execution,  so  long  as  he  delayed  its  collection; 
and  for  delaying  the  collection  of  the  execution  for  several 
months. 

Nor  release  the  liability  of  a  witness  to  pay  part  of  the  costs.  Murray  r. 
House,  11  Johns.  464;  Browne  v.  Hyde,  6  Barb.  392;  Springer  v.  Whipple, 
17  Me.  351;  Marshall  t>.  Nagel,  1  Bailey,  306. 

Nor  apply  client's  judgment  to  pay  himself.  Chapman  v.  Burt,  77  111. 
337. 

Nor  release  an  indorser  of  a  note,  in  order  to  render  him  a  competent 
witness  against  the  maker.  East  River  Bank  v.  Kennedy,  9  Bosw.  573; 
York  Bank  v.  Appleton,  17  Mo.  55. 

When  employed  to  defend  a  suit,  he  may,  under  his  general  authority, 
take  such  steps  as  are  necessary  to  a  proper  defense.  Fairchildv.  M.  C.  R. 
Co*.,  8  Bradw.  591. 

He  may  issue  execution  against  the  person,  and  render  his  client  liable  to 
an  action  for  false  imprisonment.  Guilleaume  v.  Rowe,  94  N.  Y.  268; 
Poucher  v.  Blanchard,  86  N.  Y.  256. 

He  may  consent  to  a  reference  to  accountants  and  to  the  confirmation  of 
their  report.  Stokely  v.  Robinson,  34  Pa:  St.,  315;  Woder  v.  Powell,  31 
Ga.  1. 

He  may  release  from  attachment  the  property  of  the  debtor  attached  in 
the  suit.  Monson  v.  Hawley,  30  Conn.  51. 

He  may  discontinue  a  suit.  Gaillard  v.  Smart,  6  Cow.  385;  Barrett  v. 
Third  Ave.  R.  Co.,  45  N.  Y.  628. 

Presumption  as  to  authority  to  cqmpromise.  See  People  ».  Quick,  92  111. 
580. 

no 


DECEMBEE  TEEM,  1834  123 

The  People  v.  Lamborn. 

The  fourth  charged  that  the  defendant  was  employed  and 
fully  paid,  by  one  Catlin,  to  defend  a  suit  for  him,  and 
that  after  being  *so  paid,  he  "went  to  the  plaintiffs  in     [*124] 
said  suit  and  tendered  them  his  services  as  attorney  to 
prosecute  said  suit  against  said  Catlin  for  them,  stating  to  the 
said  plaintiffs  that  as  he  had  been  employed  by  said  Catlin,  he 
knew  all  the  secrets  of  his  defense,  and  was  better  able  thereby 
to  defeat  the  same." 

The  fifth  charged  that  said  defendant,  after  being  employed 
as  an  attorney  by  one  Berry,  deserted  his  client,  and,  without 
his  knowledge,  went  over  to  his  opponents  and  conducted  the 
cause  for  them. 

The  relator  stated  in  his  affidavit  that  he  knew  nothing  of 
any  of  the  charges,  of  his  own  knowledge,  except  the  first,  but 
that  he  learned  them  from  the  information  of  others,  and  he 
believed  the  same  to  be  true. 

The  defendant  appeared  in  court  in  person,  and,  by  counsel, 
waived  the  issuing  of  process  against  him  and  pleaded  not 
guilty. 

!N".  "W.  EDWARDS,  Attorney  General,  for  the  people. 
S.  BKEESE,  for  the  defendant. 

WILSON,  Justice,  delivered  the  opinion  of  the  Court : 
The-  office  of  an  attorney  and  counselor  at  law  is  one  of 
great  responsibility.  To  the  lawyer  is  confided  the  cause  of 
nis  client,  and  in  the  issue  of  that  cause  may  be  involved 
property,  life,  liberty  and  character.  It  results,  then,  from 
the  magnitude  of  the  interest  committed  to  him,  that  he  may 
be  the  means  of  much  good,  or  of  extensive  mischief.  When 
actuated  by  high  and  honorable  motives,  the  innocent  may 
with  confidence  look  to  him  for  protection,  and  the  injured 
for  redress.  But  by  basely  betraying  his  trust,  he  becomes  a 
scourge  to  society,  and  a  stain  to  a  profession  everywhere  es- 
teemed honorable.  Courts  of  justice  ought,  therefore,  from 
a  just  sense  of  their  own  honor  and  integrity,  as  well  as  from 
a  regard  to  the  interest  of  the  community,  to  be  cautious  whom 
they  admit  to  minister  in  their  temples,  and  firm  in  expelling 
from  their  portals  those  whose  conduct  would  pollute  the  judi- 
cial altar. 

In  this  case,  five  charges  are  exhibited  against  the  defendant. 
•In  relation  to  the  first  charge,  the  Court  is  of  opinion  that  a 
lawyer  employed  to  defend  a  suit  is  not  authorized  to  consent 
to  the  entry  of  a  judgment  against  his  client  without  his  assent; 
that  his  doing  so  is  a  violation  of  the  confidence  reposed  in 

m 


VANDALIA. 


The  People  v.  Lamborn. 


him,  and  if  done  with  a  corrupt  intent,  involves  such  a  degree 
of  moral  turpitude  as  would  authorize  the  Court  to  strike  his 
name  from  the  roll  of  attorneys.  Although  the  evidence  es- 
tablishes the  fact  that  the  defendant  confessed  a  judgment  in 
the  case  of  Wright,  without  his  knowledge  or  consent,  still,  as 
it  is  not  satisfactorily  shown  that  the  motive  which  induced 
the  act,  was  corrupt  and  criminal,  nor  that  Wright, 
[*125]  the  defendant  in  the  *action  in  which  the  consent  to  an 
affirmance  of  the  judgment  was  given  by  dei'endant,  was 
injured  thereby — he  not  having,  as  far  as  the  testimony  shows, 
any  legal  defense  in  that  cause — and  as  the  defendant  may 
possibly  have  misconceived  his  powers,  we  are  of  opinion  that 
the  first  charge  and  specifications  are  not  made  out. 

The  Court,  however,  deems  it  proper  and  necessary  to  say 
that  while  the  proof  does  not  authorize  the  finding  of  the 
specifications  and  charges  proved,  still  the  defendant's  conduct 
is  not  free  from  censure. 

The  testimony  in  relation  to  the  second  charge  is  so  incon- 
clusive and  involved  in  so  much  confusion  and  obscurity  that 
it  furnishes  no  data  upon  which  to  form  an  opinion  unfavor- 
able to  the  defendant.  He  is  therefore  acquitted  of  that 
charge. 

The  Court  can  not  sanction  the  alteration  of  the  execution 
mentioned  in  the  third  charge.  From  the  evidence  the  infer- 
ence is  strong  that  it  was  made  by  the  defendant,  and  the  Court 
on  the  presumption  of  the  case  might  so  consider  it;  yet,  as  we 
do  not  perceive  any  criminal  motive  on  the  part  of  the  de- 
fendant to  make  the  alteration  complained  of,  and  as  no  injury 
resulted  from  the  alteration  to  either  of  the*  parties  in  the  suit, 
and  inasmuch  as  it  is  not  manifest  that  any  was  intended,  the 
Court  consequently  acquits  the  defendant  of  this  charge;  but 
wishes  it  to  be  distinctly  understood  that  an  alteration  of  the 
process  of  the  Court  between  its  delivery  by  the  clerk  to  the 
party  or  his  attorney,  and  its  reception  by  the  sheriff,  is  illegal 
and  highly  improper.  The  Court  does  not  consider  that  part 
of  the  third  charge  sustained  by  proof  which  accuses  the  de- 
fendant of  corruptly  bargain:ng  with  Green  to  receive  25  per 
cent,  interest  for  his  own  benefit. 

With  reference  to  the  fourth  charge,  the  counsel  for  the 
defendant  in  the  argument  admitted  that  he  had  been  guilty 
of  an  indiscretion  in  his  conduct  in  the  offer  he  made  to  Berry 
of  his  services  in  a  suit  in  which  he  had  been  employed  on 
the  other  side,  provided  his  client  would  release  him.  The 
Court  feels  constrained  to  say  that  an  act  of  this  kind  is  highly 
censurable,  although  there  may  have  been  an  absence  of  a  corrupt 
motive,  and  the  offer  may  have  proceeded  from  a  want  of  re- 
112 


DECEMBER  TERM,  1834.  125 

The  People  «.  Lamborn. 

flection  and  a  just  sense  of  the  position  an  advocate  occupies 
when  retained  by  his,  c.lient.  Nothing,  in  our  judgment,  is 
more  undignified  and  degrading  than  for  a  lawyer  to  solicit 
business  of  those  who  are  litigating;  but  more  especially  do 
they  consider  it  derogatory  to  professional  propriety  for  an 
attorney,  after  he  is  in  possession  of  his  client's  secrets  to  in- 
timate a  willingness  to  go  over  to  the  opposite  side  either 
with  or  without  the  consent  of  his  client.  If  the  conduct  of 
a  client  should  be  so  dishonorable  or  improper  as  to  warrant 
the  advocate  in  withdrawing  from  his  cause,  yet  a 
*just  sense  of  the  delicacy  of  his  position,  and  a  re-  [*126] 
gard  for  the  honor  and  character  of  the  profession, 
should  admonish  him  not  to  intimate  or  express  a  willingness 
to  be  employed  by  his  client's  adversary,  and  particularly  not 
to  act  for  him  in  advance.  Aa  it  appears  from  the  evidence 
that  the  defendant  never  refused  his  services  to  Oatlin  nor 
abandoned  his  case,  he  is  necessarily  acquitted  of  the  fourth 
charge. 

The  Court  is  of  opinion  that  the  proof  is  insufficient  to 
sustain  he  fifth  charge.  The  defendant  is  therefore  acquitted. 

The  information  in  this  case  it  will  be  seen,  contains  five 
charges.  Wrightr  the  relator,  is  the  only  person  charged  to  have 
been  injured  by  the  alleged  misconduct  of  the  defendant.  He 
appears  in  the  character  of  a  complainant.  The  other  per- 
sons alleged  to  have  been  injured  by  the  conduct  of  the  defend- 
ant either  do  not  appear  at  all,  or  such  as  do,  in  most  instances, 
express  in  their  examination  (whatever  may  have  been  their 
declarations  elsewhere)  their  satisfaction  with  the  professional 
conduct  of  the  defendant  in  their  causes.  From  these  facts 
thus  developed,  the  Court,  from  a  sense  of  justice  and  with  a 
view  of  discouraging  applications  that  can  not  be  supported  by 
proof,  wish  it  to  be  understood  as  a  general  rule  that  they 
will  not  favor  applications  of  this  character,  where  the  party 
alleged  to  have  been  injured  by  the  misconduct  of  the  attor- 
ney shall  not  be  the  complaining  party,  and  the  facts  charged 
are  not  supported  by  the  oath  of  that  party  or  some  other 
person  who  shall  affirmatively  allege  their  truth,  and  not 
merely  their  belief  of  their  truth  from  the  information  of, 
others.  In  laying  down  this  general  rule,  the  Court  does 
not  mean  to  be  understood  that  there  may  not  be  a  case 
of  circumstantial  evidence  which  might  justly  call  for  its  inter- 
position, but  the  inference  from  the  facts  sworn  to  should  be 
strong  and  overpowering,  and  the  invaded  rights  of  the  injured 
individual  demand  the  investigation  before  the  party  should 
be  called  upon  to  answer  the  accusation.  It  is  not  upon  every 
idle  rumor  put  forth  with  the  garb  and  semblance  of  truth, 

VOL.  1—8  113 


126  VANDALIA. 


Ditch  v.  Edwards. 


aided  by  feelings  of  hostility,  that  a  member  of  the  profession 
should  be  arraigned  for  sup  posed  misconduct.  It  is  the  duty 
of  the  Court  to  guard  with  vigilance  every  member  of  the 
bar  from  such  assaults,  while  at  the  same  time  it  should  not 
shrink  from  inflicting  exemplary  punishment  upon  those  who 
are  guilty  of  acts  of  delinquency. 

From  a  consideration  of  all  the  circumstances  of  this  case, 
the  Court  can  not  refrain  from  admonishing  the  defendant  of 
the  necessity  which  in  its  opinion  exists,  that  he  should  here- 
after guard  his  reputation  with  a  jealous  watchfulness,  and 
that  the  indiscretions  which  have  been  committed  may  not  be 
repeated.     It  is  also  hoped  that  while  every  member  of  the 
bar  may  feel  a  deep  interest  in  the  reputation  of  the 
[*127]     profession,    that  no  one  will   *too  readily  listen  to 
charges  and  accusations  against  their  professional  breth- 
ren, nor  be  their  accusers  without  good  cause. 

The  rule  to  show  cause  is  discharged. 

Rule  discharged. 

Justice  BROWNE  dissents  from  the  opinion  of  the  Court,  so 
far  as  it  intimates  that  any  of .  the  charges  have  been  in  part 
sustained ;  in  his  opinion  the  prosecution  has  failed  to  prove 
the  acts  charged,  as  well  as  to  show  a  corrupt  and  criminal 
motive. 


DAVID  DITCH,  plaintiff  in  error,  v.  ELVIRA  L.  EDWARDS, 
executrix  of  Ninian  Edwards,  deceased,  defendant 
in  error. 

Error  to  Monroe. 

PRACTICE — RETURN. — A  return  to  a  summons  signed  by  a  person  as 
"  deputy  sheriff,"  without  using  the  name  of  the  sheriff, , is  erroneous  and 
void.  i 

SAME — JUDGMENT  WITHOUT  '  SERVICE. — If  judgment  be  rendered  by  de- 
fault, against  a  defendant  who  has  not  been  served  with  process,  the  pro- 
ceedings are  coram  nonjudice.  •  But  the  reversal  of  such  a  judgment  does 
not  affect  the  rights  of  the  plaintiff  below. 

A  cause  will  not  be  remanded  where  the  proceedings  in  the  Court  below 
WQ  coram  nonjudice.  ,.,\ 

J.  B.  THOMAS  and  D  PRICKJST,  for  the  plaintiff  in  error. 

.  N.  W.  EDWARDS,  for  the  defendant  in  error. 

Return  signed  by  deputy,  cited,  27  111.  497.    Decree  against  party  not 
•erved  erroneous,  cited  47  Id.  415. 
See  31  m.  164. 
hi 


DECEMBER  TERM,  1834.  127 

Wickersham  v.  The  People. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  is  a  writ  of  error  to  the  Monroe  Circuit  Court.  The 
error  relied  on  is  that  the  summons  is  returned  by  a  person 
who  signs  his  name  as  deputy  sheriff,  without  using  the  name 
of  the  sheriff.  At  the  return  term  a  judgment  was  rendered 
by  default.  This  was  clearly  erroneous  according  to  the  decis- 
ion in  the  case  of  Ryan  v.  Eads  (Breese,  168).  The  de- 
fendant's counsel  on  the  argument  conceded  that  the  judg- 
ment must  be  reversed,  but  requested  that  the  cause  might  be 
remanded  to  the  Circuit  Court  for  further  proceedings.  This 
Court  has  power  to  remand  causes  for  further  proceedings, 
where  there  remains  anything  in  the  Court  below  that  is  legal. 
In  this  case,  so  far  as  the  defendant  below  is  concerned  (he 
not  having  appeared,  and  there  being  no  service  by  the  sher- 
iff), the  cause  must  be  considered  as  coram  non  judice,  and 
consequently  there  can  be  nothing  to  remand.  The  reversal 
of  the  judgment  below,  however,  can  not  ini|  a'r  the  rights  of 
the  plaintiff  below  ;  if  she  has  a  cause  of  action,  it  still  exists, 
and  is  in  no  wise  impaired  by  the  judgment  below  and 'its  re- 
versal in  this  Court.  The  judgment  is  reversed  with  costs. 

Judgment  reversed. 


*  JAMES  L.  WICKERSHAM,   plaintiff  in  error,     [*128] 
v.  THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS, 
defendants  in  error. 

Error  to  Clay. 

JUSTICES — ACTS  OF — WHEN  INDICTABLE  OFFENSES. — Acts  of  official  mis- 
conduct by  justices  of  the  peace,  done  with  corrupt  motives,  are  indictable 
offenses. 

An  indictment  charging  that  the  defendant,  a  justice  of  the  peace,  took 
np  certain  estray  animals,  specifying  the  number  and  kind,  and  corruptly 
caused  the  same  to  be  appraised  before  himself  as  such  justice,  is  substan-. 
tially  good. 

PRACTICE— NEW  TRIAL. — Courts  will  reluctantly  interfere'  to  set  aside  a 
verdict  and  grant  a  new  trial,  where  the  proceedings  have  been  regular. 

JURORS.— -The  fact  that  the  names  of  two  petit  jurors  are  the  same  as 
those  of  two  grand  jurors,  does  not  show  that  they  are  the  same  persons. 

OBJECTIONS. — Objections  to  jurors,  if  known,  should  be  made  before  trial. 

THIS  cause  was  tried  at  the  March  term,  1833,  of  the  Clay 
Circuit  Court. 

'  Cited:  3  Gilm.  663;  28  111.  227.    See  2  Scam.  477. 

116 


128  VANDALIA. 


Wickersham  v.  The  People. 


S.  BKBESE,  for  the  plaintiff  in  error,  cited  Nomaque  v.  The 
People,  Breese,  100;  Bibles  and  Hardiu's  Reports, passim. 

N.  W.  E'PWASDS,  Attorney  General,  for  the  defendants  in 
error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

Wickersham  was  indicted  for  malfeasance  in  office  as  a  jus- 
tice of  the  peace.  The  indictment  charges  that  he  took  up  cer- 
tain estray  animals,  specifying  the  number  and  kind,  and  cor- 
ruptly caused  them  to  be  appraised  before  himself  as  such 
justice.  A  motion  to  quash  the  indictment  was  made  in  the 
Circuit  Court  before  pleading,  but  on  what  particular  ground 
does  not  appear.  A  jury  trial  was  had,  and  verdict  of  guilty, 
upon  which  judgment  of  fine  and  removal  from  office  was 
rendered,  upon  the  recommendation  of  the  jury.  None  of 
tlie  evidence  is  preserved,  nor  were  any  instructions  asked  of 
the  Court.  A  motion  for  a  new  trial  was  made,  and  the  rea- 
sons filed. 

The  plaintiff  in  error  has  assigned  for  error,  that  the  indict- 
ment contains  no  indictable  offense,  and  that  the  Circuit  Court 
erred  in  refusing  a  new  trial  from  the  facts  appearing  on 
record. 

On  the  first  point  we  are  to  inquire,  whether  an  act  of  an 
official  character,  done  by  a  justice  of  the  peace,  with  a  cor- 
rupt intent,  is  an  indictable  offense,  arid  whether  the  indict- 
ment charges  the  commission  of  sueh  an  act  with  such  an  in- 
tent. By  the  HOth  section.  (R.  L,  195  ;,  Gale's  Stat.  218)  of 
the  act  relative  to  criminal  jurisprudence,  passed  in  1833,  it  si 
expressly  provided,  that  justices  of  the  ]  eace  may,  for  corrupt 
acts  of  oppression,  partiality,  or  malfeasance  in  office,  be  in- 
dicted, and  upon  conviction,  they  shall  be  fined  and  removed 
from  office,  upon  the  recommendation  of  the  jury. 
[*129]  *From  this  provision  of  that  act.  it  can  not  then  be 
doubted  that  acts  of  official  misconduct  by  justices  of 
the  peace,  done  with  corrupt  motives,  are  indictable  offenses. 
Whether  the  acts  charged  in  the  indictment  to  have  been  com- 
mitted amount  to  official  misconduct,  and  whether  or  not  they 
are  charged  to  have  been  done  with  a  corrupt  intent,  and  are 
sufficiently  and  certainly  averred,  will  be  ascertained  by  com- 
paring the  averments  with  the  law  regulating  the  mode  of 
proceedings  in  the  taking  up  of  e^tray  animals. 

The  indictment  charges  the  accused  with  taking  up  the 
animals  and  corruptly  causing  them  to  be  appraised  oefore 
himself.  To  authorize  an  appraisement,  the  party  taking  up 
the  estray  is  to  make  oath  of  the  fact  before  a  justice  of  the 
peace,  who  is  then  to  issue  his  warrant  to  a  constable  to  sum- 
lie 


DECEMBER  TERM,  1834.  129 

Wickersham  v.  The  People. 

mon  three  appraisers,  who  are  to  be  sworn,  before  a  justice, 
faithfully  and  impartially  to  value  the  estray.  These  are  the 
facts  which  are  "charged,  under  the  term  u  appraised  before 
himself"  used  in  the  indictment,  to  have  been  corruptly  done. 
Whether  the  acts  were  doire  ignorantly,  or  for  ^corrupt  pur- 
poses, would  necessarily  depend  on  the  evidence  exhibited  on 
the  trial,  but  that  such  acts  would,  in  a  case  where  the  justice 
was  a  party  interested,  be  illegal,  we  can  not  doubt ;  and  that 
they  would,  if  done  with  a  corrupt  intent,  be  an  act  of  mal- 
feasance in  office,  seems  equally  -certain.  The  indictment  is 
then  substantially  good,  although  it  might  have  been  more 
formal  and  particular  in  setting  out  specifically  each  illegal 
and  corrupt  act  embraced  in  the  general  allegation  of  "caus- 
ing the  animals  to  be  corruptly  appraised  before  himself." 
As  to  the  other  ground  in  refusing  a  new  trial,  it  will  be  seen 
that,  according  to  the  decisions  of  this  Court,  it  has  been  ad- 
judged in  several  civil  cases  that  the  exercise  of  the  power  to 
grant  or  refuse  a  new  trial  is  an  act  of  sound  legal  discretion, 
and  that  with  the  exercise  thereof  this  Court  will  not  inter- 
fere. The  case  of  the  Indian  Noniaque,  decided  in  this  Court 
in  1825,  has  been  cited  as  establishing  a  distinction  in  favor 
of  granting  new  trials  in  criminal  cases.  From  an  examina- 
tion of  that  case,  it  \v  ill  be  perceived  that  all  the  Court  say 
is,  that  in  its  opinion  the  Circuit  Court  ought,  on  the  facts 
which  were  before  it,  to  have  granted  a  new  trial ;  but  it  does 
not  intimate  that  this  Court  ought  to  grant  one.  It  will  also 
be  perceived  that  this  point  formed  no  ground  of  the  reversal 
of  the  judgment  in  that  case ;  for  the  proceedings  were  pro- 
nounced cora/m  non  judice,  because  the  bill  of  indictment  was 
not  indorsed  "  a  true  bill,"  verified  by  the  signature  of  the 
foreman  of  the  grand  jury.  There  is,  however,  a  marked  dif- 
ference between  the  exercise  of  this  power  in  a  civil  and  in  a 
criminal  case. 

In  a  civil  case  the  jury  are  the  judges  of  the  facts  only,  but 
in  a  criminal  one,  they  are  not  only  the  judges  of  the 
facts,  but  of  *the  law,  under  the   direction   of  the     [*130] 
Court.     Courts  will  reluctantly  interfere  to  set  aside 
a  verdict  and  grant  a  new  trial,  where  the   proceedings  have 
been  regular,  and  no  misconduct  has  happened  in  the  jurors, 
merely  because   the  jury  may  be  supposed  to  have  mistaken 
the  law  of  the  case,  or  may  have  judged  mistakenly  with  re- 
gard to  the  weight  of  the  evidence. 

If  this  be  true  with  reference  to  the  exercise  of  this  discre- 
tionaiy  power  in  the  Court  where  the  accused  is  tried  and  asks 
for  anew  trial,  upon  what  principle  can  this  Court  be  required 
to  reverse  a  decision  made,  in  the  exercise  of  this  discretion, 
under  such  views  of  this  Dower  ? 

117 


130  YANDALIA. 


Wickersham  v .  The  People. 


The  reasons  on  which  the  new  trial  was  asked  for  in  the 
Circuit  Court,  are  of  extrinsic  facts,  in  reference  to  the  jury 
after  they  were  charged  with  the  case  of  the  accused, 
and  because  two  of  the  petit  jurors  were  members  of  the 
grand  jury  who  found  the  bill  of  indictment  and  consented 
thereto. 

The  record  presents  no  evidence  whatever  of  the  facts  al- 
leged, except  that  on  the  panels  of  the  jury,  the  names  of  the 
two  jurors  are  similar;  but  whether  they  are  the  same  persons 
does  not  appear,  nor  that  the  jurors  consented  thereto,  nor 
that  the  defendant  did  not  know  of  the  objection  before  trial, 
and  consequently  this  Court  could  not  judge  of  the  merits  of 
the  application  for  a  new  trial,  did  the  Court  suppose  the  pres- 
ent case  exempt  from  the  application  of  the  principles  laid 
down. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON.  This  Court,  previous  to  the  passage  of  the  act  of 
July  21,  1837  (Gale-'s  Stat.  540),  repeatedly  decided  that  an  application  to 
set  aside  a  default,  or  to  grant  a  new  trial,  was  an  application  addressed  to 
the  sound  discretion  of  the  Court  where  the  judgment  was  rendered,  and 
that  the  decision  of  the  Court  upon  such  application  could  not  be  assigned 
for  error. 

Garner  et  al.  v.  Crenshaw,  decided  Dec.  term,  1834,  post;  Sawyer  v. 
Stephenson,  Breese,  6;  Cornelius  v.  Boucher,do.  12;  Clemson  v.  Kruper,  do. 
162;  Collins  v.  Claypole,  do.  164;  Street  v.  Blue,  do.  201;  Adams  et  al.  v. 
Smith,  do.  221;  Vernon  et  al.  v.  May,  do.  229;  Littletons  v.  Moses,  Breese's 
App.  9. 

The  second  section  of  that  act  provides  that,  "Exceptions  taken  to  opin- 
ions or  decisions  of  the  Circuit  Courts,  overruling  motions  in  arrest  of  judg- 
ment, motions  for  neto  trials,  and  for  continuance  of  causes,  shall  hereafter 
be  allowed,  and  the  party  excepting  may  assign  for  error  any  opinion  so  ex- 
cepted  to,  any  usage  to  the  contrary  notwithstanding." 

This  section,  however,  does  not  give  the  right  to  assign  for  error  a  decision 
of  a  Circuit  Court,  granting  a  new  trial,  etc.    It  relates  only  to  the  decisions  . 
of  the  Courts  overruling  the  motions  therein  contained.    See  a  case  decided 
Dec.  term,  1839. 

118 


DECEMBER  TERM,  1834.  131 

Harmison  v.  Clark  et  al. 


*NATHAJSTIEL  HAKMISON,  plaintiff  in  error,  v.     [*131] 
REUBEN   CLARK,  JACOB  CLARK,  Senr.,  and 
LUCY  CLARK,  his  wife,  and  JACOB  CLARK, 
Jr.,  defendants  in  error. 

Error  to  Franklin. 

PRACTICE — EXCEPTIONS. — Exceptions  taken  upon  the  first  trial,  a  new  trial 
being  granted  and  had,  can  not  avail  the  party  excepting.  In  order  to  be 
available,  the  exceptions  should  have  been  renewed  on  the  last  trial  (if  the 
same  ground  of  exception  occurred). 

DISCRETION — ERROR. — An  application  to  set  aside  a  judgment  by  default, 
or  to  grant  a  new  trial,  is  an  application  addressed  to  the  discretion  of  the 
Court,  and  the  decision  of  the  Court  upon  such  application,  can  not  be  as- 
signed for  error. 

A  party  can  not  assign  that  for  error  which  was  for  his  own  benefit. 

THIS  is  an  action  of  trespass  instituted  by  Harmison  against 
the  above  named  defendants,  together  with  Hiram  Clark  and 
Abraham  Clark.  Upon  the  two  last  no  service  of  process  was 
had,  nor  was  there  any  appearance  entered  by  them.  The  dec- 
laration contained,  as  at  first  filed,  two  counts,  the  fiist  of 
which  charged  that  on  the  llth  of  March,  1832,  with  force 
and  arms,  at  the  county  of  Franklin,  the  defendants  broke  and 
entered  the  close  of  the  plaintiff,  and  set  fire  to,  and  burned 
and  destroyed  one  mill-house,  one  barn,  two  corn-cribs,  one 
stable,  1,000  bushels  of  corn,  one  wagon,  etc.,  of  the  value  of 
$1,000.  and  other  wrongs,  etc. 

The  second  count  charged  that  on  the  same  day  and  year, 
and  at  the  same  county,  the  defendants,  with  force  and  arms, 
set  fire  to,  burned  down,  and  destroyed  other,  the  property  of 
the  plaintiff,  of  the  value  of  $1,000,  and  other  wrongs,  etc. 

At  the  term  to  which  the  writ  was  returnable — it  having 
been  returned  as  executed  upon  the  defendants  Reuben,  Jacob, 
Jr.,  Jacob,  Sr.,  and  Lucy,  his  wife,  the  defendants  in  this  writ 
of  error — the  Court  granted  a  rule  requiring  the  defendants 
to  plead  by  9  o'clock  of  the  next  day.  This  rule  was  granted 
and  entered  of  record  the  3d  of  October,  1832.  Accordingly, 
on  the  next  day,  the  4th  of  October,  the  defendants,  Reuben, 
Jacob,  Jr.,  and  Jacob,  Sr.,  filed  their  plea  of  not  guilty,  upon 
which  plea  issue  was  joined  the  same  day. 

At  the  April  term,  1833,  of  the  Circuit  Court,  to  which 
term  the  cause  had  been  continued  on  motion  of  the  plaintiff, 
a,  judgment  by  default  was  taken  against  Lucy  Clark  and  Ja- 

CITED:  5  Gilm.  324;  k8  I1J.  227.  See  preceding  case  and  note;  '61  111.  880; 
40  111.  174. 

•J19 


131  VANDALIA. 


Hariuison  v.  Clark  et  al. 


cob  Clark,  Sr.,  her  husband,  for  their  default  in  not  pleading 

or  otherwise  answering  on  behalf  of  Lucy,  to  the  plaintiff's 

action,  and  a  jury  was  called  and  sworn  to  try  the  issue  joined, 

and  to  inquire  of  damages  against  Jacob  Clark,  Sr.,  and  Lucy, 

his  wife.    The  jury  returned  a  verdict  of  not  guilty  as 

[*132]      to  the  issue,  and  assessed  the  ^damages  against  Jacob 

Clark,  Sr.,  and  Lucy  his  wife,  to  $360. 

On  the  trial  before  the  jury,  it  appeared  that  the  burn- 
ing of  the  property  charged,  took  place  in  Hamilton 
cvunty,  and  the  Court,  on  motion  of  the  defendants,  excluded 
the  evidence  from  the  jury,  as  to  all  of  the  defendants  who 
were  on  trial.  To  this  decision  the  plaintiff  excepted. 

On  the  next  day,  the  4th  of  April,  and  before  judgment 
was  entered  on  the  assessment  of  damages,  against  the  defend- 
ants in  default,  Jacob  Clark,  Sr.,  one  of  those  defendants,  made 
and  filed  his  affidavit,  setting  forth  in  substance  that  he  had 
understood  from  the  sheriff,  when  at  his  house  to  serve  proc- 
ess on  himself,  that  his  wife,  Lucy,  was  not  included  in  the 
suit ;  that  he,  the  affiant,  did  not  then,  or  at  any  time,  know 
that  his  wife  was  a  party  to  the  suit ;  that  no  rule  or  notice 
was  ever  served  on  him  of  any  description,  by  which  he  sup- 
posed his  wife  was  a  party  to  the  suit,  nor  did  he  believe  his 
wife  was  ever  summoned  by  the  sheriff,  or  knew  in  any  man- 
ner that  she  was  a  party  to  the  suit,  or  required  to  plead  or  at- 
tend to  the  trial.  The  affidavit  further  stated  that  the  affiant 
was  informed  by  counsel  since  the  trial  of  the  suit,  and  believed, 
that  his  wife  had  a  good  and  meritorious  defense,  and  that  she 
would  be  able  to  show  on  a  trial  of  the  merits  of  the  case,  that 
she  was  in  no  wise  guilty  of  the  trespasses  complained  of. 
That  he  was  expressly  informed  and  believed,  that  his  informa- 
tion came  from  the  plaintiff,  that  the  suit  had  been  compro- 
1  inised  on  the  part  of  the  other  defendants,  and  that  consequently 
he  was  released  from  all  liability  in  the  action.  That  at  the 
last  term  of  the  Franklin  Circuit  Court,  the  plaintiff  sued  the 
affiant  and  others,  not  including  the  wife  of  the  affiant,  and  he, 
the  affiant,  expressly  understood  that  it  was  upon  this  last  suit 
that  he  was  bound  to  answer,  and  that  Harmison  had  aban- 
doned the  first. 

Upon  this  affidavit  of  Jacob  Clark,  Sr.,he,  and  his  wife  Lucy, 
moved  the  Court  to  set  aside  the  judgment  of  default  rendered, 
and  the  proceedings  had. 

The  plaintiff  resisted  the  motion,  and  on  its  hearing  offered 
to  read  to  the  Court  the  affidavits  of  Warrenton  L.  Duncan 
and  Wm.  Dye,  the  first  of  which  asserted  the  service  of 
summons  on  Lucy  Clark,  as  returned  by  the  affiant,  and  that  the 
return  was  literally  and  in  every  respect  true.  That  he  never 
120 


DECEMBER  TERM,  1834.  132 

Harmison  v.  Clark  et  al. 

gave  Lucy  Clark,  nor  her  husband,  to  understand  that  the 
former  was  not  sued,  or  that  the  suit  was  compromised.  That, 
furthermore,  both  of  these  defendants  had  acknowledged  to 
the  affiant  that  they  were  summoned  and  that  they  knew  it. 
The  affidavit  of  Foster  and  Dye  sets  forth  that  they,  the  affi- 
ants, were  present  on  Friday  morning,  the  5th  of  April,  (the 
day  after  the  motion  and  affidavit  were  made  and 
filed,)  and  heard  Jacob  Clark,  Sr.,  and  his  wife,*admit  [*133] 
that  the  summons  in  this  case  had  been  served  on  the 
latter  by  the  sheriff  of  Franklin  county,  previous  to  the  Octo- 
ber term,  1832,  but  that  knowing  that  he  had  not  served  a  cer- 
tain capias,  issued  during  that  term,  at  the  suit  of  Harmison, 
against  the  same  parties,  they,  Clark  and  his  wife,  meant  that 
he  had  not  served  that  capias. 

These  affidavits  the  Court  refused  to  hear,  and  upon  the  affi- 
davit of  Jacob  Clark,  Sr.,  set  aside  the  default  and  verdict, 
and  granted  a  new  trial  as  to  all  of  the  defendants,  as  well 
those  who  had  pleaded  as  those  against  whom  the  default  had 
been  taken. 

To  both  of  these  decisions  the  plaintiff's  counsel  excepted. 

The  cause  was  then  continued  until  the  next  succeeding 
term  of  the  Circuit  Court,  at  which  term,  by  leave  of  the 
Court  previously  given,  a  new  count,  by  way  of  amendment  to 
the  decoration,  was  filed,  charging  a  trespass  upon  personal 
property  only.  Pleas  were  put  in  by  all  of  the  defendants  in 
Court,  including  Lucy  Clark,  and  Jacob  Clark,  Sr.,  and  a  ver- 
dict was  rendered  for  the  defendants.  Upon  which  verdict 
the  Court  gave  judgment  for  costs  against  Harmison. 

To  reverse  this  judgment,  and  to  render  final  the  judgment 
before  taken  against  Jacob  Clark,  Sr.,  and  his  wife,  this*  writ 
of  error  was  prosecuted.  The  cause  was  tried  at  October 
term,  1833,  before  the  Hon.  Thomas  C.  Browne  and  a  jury. 

A.  F.  GRANT,  for  the  plaintiff  in  error,  contended  that  the 
reason  given  in  the  books  why  an  action  of  trespass  quare 
clausum  fregit  is  considered  a  local  action  in  England,  does 
not  exist  in  this  country.  The  only  substantial  distinction  be- 
tween local  and  transitory  actions  being,  as  laid  down  by  Lord 
Mansfield,  that,  "  Where  the  proceeding  is  in  rem,  and  where 
the  effect  of  the  judgment  can  not  be  had,  if  the  venue  be  laid 
in  a  wrong  place,  the  action  is  local;"  while  here  the  process 
of  our  Courts,  final  process,  as  well  as  all  other,  runs  through- 
out the-  State,  may  issue  from  one  county,  and  be  directed  to 
and  executed  by  the  sheriff  of  another.  If  the  law  ceases  with 
the  reason  upon  which  it  is  founded,  then  the  common  law 

121 


133  YANDALIA. 


Harmison  r.  Clark  et  al. 


governing  the  laying  of  the  venue,  in  cases  of  this  kind,  can 
not  be  the  law  in  this  State.  Fabrigus  v.  Mostyn,  Cowp. 
170-7,  cited  in  Tidd's  Practice,  370. 

The  principal  matters  stated  in  the  affidavit  of  Clark,  are 
stated  by  him  on  the  information  of  others,  and  not  of  his 
own  knowledge.  They  are  matters,  however,  for  the  most 
part,  within  the  personal  knowledge  of  his  wife,  if  they  ex- 
isted; and  she  not  having  sworn  to  them,  although  with  her 
husband  party  to  the  application,  and  some  of  the  facts  stated 
being  in  direct  contradiction  to  the  return  of  the  sheriff,  the 
reading  of  the  counter  affidavits  offered  by  the  plaint- 
[*134]  iff,  tended  to  the  eliciting  of  truth,  *and  was  for  that 
reason  proper,  on  a  motion  addressed  to  the  discre- 
tion of  the  Court. 

Counter  affidavits,  upon  applications  to  hold  to  bail,  etc., 
where  a  discretion  is  to  be  exercised,  are  admitted  in  the 
Court  of  Common  Pleas  in  England,  and  in  the  American 
Courts.  1  Sellon's  Prac.  113;  Johns.  Cases,  105,  cited  in  Am. 
Dig.  105. 

The  default  was  taken  against  Clark  and  his  wife  for  the 
want  of  an  appearance  and  plea  on  behalf  of  the  latter.  The 
application  to  set  aside  the  default  was  made  by  both  of  them, 
and  should  have  been  predicated  upon  the  joint  or  separate 
affidavits  of  both;  and  many  of  the  facts  stated  in  the  affidavit 
that  was  made,  being  facts  that  in  their  nature  were  within 
the  wife's  knowledge,  and  she  being  a  party  in  the  application, 
her  affidavit,  as  to  these  facts  particularly,  was  necessary. 
"An  affidavit,  by  a  third  person,  of  facts  in  the  knowledge  of 
a  party,  on  which  the  application  is  founded,  can  not  be  read, 
as  it  ought  to  be,  by  the  party  himself."  3  Caines,  125,  cited 
in  1  Am.  Dig.  16. 

The  award  of  a  new  trial  as  to  all,  upon  the  application  of 
some,  without  the  assent  of  the  others,  is  error.  Such  in  this 
case  was  the  order,  and  to  that  effect  was  the  application  of 
the  defendants.  1  Washington,  322;  2  Strange,  813;  2  Blac. 
Ks.  1030;  12  Mod.  275;  3Salk.  362. 

W.  B.  SCATES,  for  the  defendants  in  error,  cited  1  Tidd's 
Pract.  369,  404,  430,  433,  434-5,  506-8,  819.  "  Where  three 
are  sued,  and  two  suffer  judgment  of  default,  and  the  third 
pleads  to  issue,  and  it  is  found  for  him,  the  two  may  bring  a 
writ  of  error."  2  Tidd's  Pract.  1054 ;  Gould's  Plead.  116 ; 
Bac.  Abr.  tit.  Local  Actions^  A,  a;  Cowp.  180;  4  Term  E. 
503;  6  East,  598-9. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 


122 


DECEMBER  TERM,  1834.  134 

Harmison  v.  Clark  et  al. 

In  this  cause  two  trials  were  had  in  the  Court  below.  Upon 
the  first  trial,  judgment  was  rendered  in  favor  of  two  of  the 
defendants,  and  judgment  by  default  was  taken  against  Jacob 
Clark,  Sr.,  and  Lucy  his  wife,  two  other  defendants.  At  the 
same  term,  the  Court,  upon  the  application  of  Jacob  Clark, 
Sr.,  set  aside  the  default  against  him  and  his  wife,  and 
granted  a  new  trial  as  to  all  of  the  defendants. 

During  the  progress  of  the  first  trial,  several  exceptions 
were  taken  by  the  plaintiff  to  the  opinion  of  the  Court,  but 
these  exceptions  are  not  now  available.  To  have  enabled  him 
to  avail  himself  of  them,  he  should  have  renewed  them  on 
the  last  trial  (if  the  same  ground  of  exception  again  occurred), 
as  that  was  a  trial  de  novo,  and  the  judgment  rendered  on  that 
trial  is  the  only  final  judgment  in  the  cause. 

Upon  the  second  trial,  a  verdict  and  judgment  were  ren- 
dered in  favor  of  all  the  defendants. 

*From  this  statement  of  the  case,  the  only  assign-  [*135] 
ment  of  error  that  can  be  noticed  by  the  Court,  is  that 
which  questions  the  correctness  of  the  order  of  the  Court  be- 
low, setting  aside  the  default  of  two  of  the  defendants,  and 
f  ranting  a  new  trial,  as  to  all  of  them.  It  has  been  repeatedly 
ecided  that  an  application  to  set  aside  a  judgment  by  default, 
or  to  grant  a  new  trial,  is  addressed  to  the  discretion  of  the 
Court,  and  that  the  decision  of  the  Court  upon  such  applica- 
tion can  not,  therefore,  be  assigned  for  error.  It  is  however 
contended  that  this  case  is  not  within  this  general  rule,  because 
a  new  trial  was  ordered  as  to  two  of  the  defendants  who  were 
acquitted,  and  who  did  not  join  in  the  application  made  by  the 
others  for  that  purpose.  This  position  might  well  be  assumed 
by  those  defendants  who  were  acquitted  on  the  first  trial,  had 
they  afterward  been  convicted;  because  the  effect  of  the  or- 
der was  to  impose  upon  them  the  costs  of  another  trial,  and  to 
subject  them  to  another  chance  of  conviction.  But  the  same 
reason  that  would,  under  this  state  of  the  case,  authorize  them 
to  assign  this  decision  of  the  Court  for  error,  precedes  the 
plaintiff  from  doing  so.  The  decision  was  to  his  advantage, 
by  multiplying  his  chances  of  success.  He  therefore  has  no 
reason  to  complain,  and  can  not  assign  that  for  error  which  was 
for  his  benefit.  The  judgment  must  be  affirmed  with  costs. 

Judgment  affirmed. 

123 


135  VANDALIA. 


Irvin  and  wife  v.  Wright. 


ABRAHAM  IRVIN  and  ELIZABETH  IRVIN,  his  wife,  plaint- 
iffs in  error,  v,  GEORGE  WRIGHT,  defendant  in  error. 

Error  to  G-allatin. 

SET-OFF — TIME. — A  judgment  recovered  after  action  brought,  and  after 
plea  pleaded,  can  not  be  set  off  against  the  plaintiff's  demand. 

CONSTRUCTION. — The  construction  of  the  English  statute  of  set-off,  and 
of  §  I7  of  our  practice  act,  should  be  the  same  in  relation  to  the  time  at 
which  the  set-off  should  exist. 

THIS  action  was  tried  at  the  March  term,  1834,  of  the  Gal- 
latin  Circuit  Court,  before  the  Hon.  Thomas  C.  Browne  and  a 
jury.  A  verdict  was  rendered  for  the  defendant  in  error,  who 
was  the  plaintiff  in  the  Court  below,  for  $55.25.  Upon  this 
verdict  judgment  was  entered. 

H.  EDDY,  A.  F.  GRANT  and  S.  BREESE,  for  the  plaintiffs  in 
error. 

W.  J.  GATEWOOD,  for  the  defendant  in  error. 

[*136]  *LOCEWOOD,  Justice,  delivered  the  opinion  of  the 
Court : 

This  was  an  action  of  assumpsit  brought  by  Wright  to  re- 
cover compensation  for  work  and  labor  done  and  performed  for 
Mrs.  Irvin,  while  sole. 

Among  other  pleas  which  it  is  unnecessary  to  notice,  the 
defendants  below  pleaded  that  since  the  commencement  of  the 
suit  in  the  Court  below,  they  had  recovered  a  judgment  against 
Wright,  which  they  offered  to  set  off  against  the  damages  sus- 
tained by  the  plaintiff  in  this  suit.  To  this  plea  Wright  de- 
murred, and  the  Circuit  Court  sustained  the  demurrer. 

Did  the  Court  err  in  this  judgment?  By  the  17th  section  (R. 
L.491  ;  Gale's  Stat.  532)  of  the  "Act  concerning  Practice  in 
Courts  of  Law"  it  is  provided  that  "The  defendant  in  any  action 
brought  upon  any  contract  or  agreement,  either  express  or  im- 
plied, having  claims  or  demands  against  the  plaintiff,  may  plead 
the  same,"  etc.  The  only  question  for  our  consideration  under 
this  act,  is,  at  \vhat  time  must  the  claims  or  demands  exist,  so  as 
to  justify  their  being  set  off  against  the  plaintiff's  demand?  It 
was  contended  in  the  argument,  by  the  counsel  for  Irvin,  that 
our  statute  was  more  comprehensive  than  the  English  statute  of 
set-off,  and  therefore  a  debt  or  demand  due  or,  accruing  after 

See  post  462. 
124 


DECEMBEE  TEEM,  1834.  136 

Tindall  v.  Meeker. 

suit  brought,  might  be  set  off.  The  Court,  however,  upon  an 
examination  of  the  English  statute  of  set-off,  are  of  opinion 
that  although  the  phrase  in  our  statute,  "claims  or  demands," 
would  admit  of  a  construction  that  would  embrace  more  modes 
of  indebtedness  than  the  phrase  "  mutual  debts,"  used  in  the 
English  statute,  yet  in  respect  to  the  time  at  which  the  "claims 
or  demands,"  under  our  statute,  and  the  "mutual  debts"  under 
the  English  statute,  should  exist  so  as  to  be  the  subject  of  set- 
off,  the  same  contraction  as  to  both  statutes  ought  to  prevail. 
In  the  case  of  Evans  v^Prosser  (3  Term  E.  186),the  Court  of 
King's  Bench  held  that  a  judgment  recovered  after  the  action 
was  brought,  and  before  plea  pleaded,  could  not  be  pleaded  as  a 
set-off.  This  decision  we  think  in  point,  and  we  do  not  perceive 
that  it  violates  any  principle  of  justice,  orthe  intention  of  the 
legislature.  Should  a  different  construction  prevail,  gross  injus- 
tice might  frequently  be  practiced.  The  plaintiff,  when  he  com- 
mences his  suit,  has  a  good  cause  of  action,  and  to  which  the 
defendant  has  no  defense ;  yet  if  the  rule  should  be  established 
that  "claims  or  demands"  might  be  pleaded  that  originated  or 
became  due  after  suit  is  brought,  it  will  put  it  in  the  power  of 
the  defendant,  by  purchasing  a  note  against  the  plaintiff,  to  de- 
feat his  action,  and  consequently  charge  him  with  the  costs. 
This  can  not  be  reasonable,  nor  can  it  be  supposed  that  the 
legislature  intended  to  enable  the  defendant,  by  an  act  of  his 
own,  to  defeat  the  plaintiff's  right  of  recovery  in  a 
case  so  situated.  The  Court  are  of  ^opinion  that  [*137] 
the  demurrer  of  the  plaintiff  was  properly  sustained. 
The  judgment  of  the  Court  below  is  affirmed  with  costs. 

Judgment  affirmed. 


WILLIAM   TINDALL,  appellant,   v..   DANIEL  MEEKEE, 

appellee. 

Appeal  from  Madison. 

APPEALS  FROM  JUSTICES—TRIAL  DE  NOVO.— Appeals  from  the  judgments 
of  justices  of  the  peace  must  be  tried  in  the  Circuit  Court  de  novo. 

INTEKEST,  COMPUTATION  OK— JUDGMENT. — Where  a  judgment  is  rendered 
by  a  justice  of  the  peace  upon  a  note  bearing  interest,  and  an  appeal  is  taken 
to  the  Circuit  Court,  in  computing  the  amount  due  on  the  note,  interest 
should  be  calculated  upon,  on  the  note,  to  the  time  of  rendition  of  the  judg- 
ment in  the  Circuit  Court,  and  not  on  the  judgment. 

On  appeal  from  a  judgment  of  a  justice  of  the  peace,  the  Circuit  Court 

3  Scam.  195;  91  111.  225;  13  Bradw.  116,  See  post  198,  577;  24  111.  113; 
27  111.  293. 


137  YANDALIA. 


Tindall  v.  Meeker. 


should  give  judgment  for  the  amount  that  may  be  due,  although  that  amount 
mav  exceed  the  jurisdiction  of  a  justice,  provided  the  justice  had  jurisdiction 
at  the  time  ^of  the  commencement  of  the  suit.  The  rule  is,  if  an  inferior 
court  has  Jurisdiction  ab  origin  e,  no  subsequent  fact  arising  in  the  case  can 
defeat  it. 
Interest  may  be  calculated  at  any  rate  that  the  parties  may  agree  upon. 

THIS  cause  was  tried  in  the  Circuit  Court  of  Madison  County, 
at  the  May  term,  1834,  before  the  Hon.  Theophilus  W.  Smith. 

J.  SEMPLE,  for  the  appellent. 

J.  B.  THOMAS,  Jr.,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

Meeker  sued  Tindall  before  a  justice  of  the  peace  on  two 
promissory  notes,  one  bearing  interest  at  the  rate  of  twelve 
per  centum  per  annum,  and  the  other  at  the  rate  of  twenty 
per  centum  per  annum.  On  the  trial  before  the  justice, 
Meeker  recovered  a  judgment  for  $92.25,  being  the  amount  of 
the  principal  and  interest  of  the  notes  at  the  time  of  trial, 
calculating  the  interest  at  the  rates  specified  in  the  notes.  To 
reverse  this  judgment,  an  appeal  was  taken  to  the  Madison 
Circuit  Court,  where  at  the  May  term,  1834  (after  a  delay  of 
sixteen  months  from  the  rendition  of  the  judgment  by  the  jus- 
tice of  the  peace),  a  trial  was  had,  and  the  judgment  of  the 
justice  of  the  peace  affirmed;  and  the  Court  in  addition  allowed 
$7.75  as  interest,  making  the  judgment  in  the  Circuit  Court 
amount  to  $100. 

The  Court,  as  appears  from  the  bill  of  exceptions,  in  calcu- 
lating interest,  allowed  interest  on  the  notes  from  their  re- 
spective dates  and  according  to  the  respective  rates  mentioned 
in  said  notes  up  to  the  time  of  rendering  judgment  in  the  Cir- 
cuit Court,  The  interest  at  the  rates  specified  in  the 
•  [*13S]  notices  amounted,  with  *the  principal,  to  more  than 
$100.  The  excess  over  that  sum  was  remitted  by  the 
plaintiff  below.  An  appeal  has  been  taken  from  the  judg- 
ment to  this  Court,  and  the  appellant  assigns  for  error,  1st, 
that  the  Circuit  Court  allowed  interest  on  a  judgment  of  a  jus- 
tice of  the  peace  at  a  greater  rate  than  six  per  cent.  2d,  that  if 
interest  at  the  rate  agreed  on  in  the  notes  was  allowable,  then 
the  amount  .of  principal  and  interest  was  over  $100  and  the 
Court  could  not  give  judgment. 

In  support  of  the  first  assignment  of  error,  the  act  entitled 
"  An  act  regulating  the  interest  of  money"  (R.  L.  350  ;  Gale's 
Stilt.  344)  is  relied  on.  This  act  provides  "  that  creditors  shall 
be  allowed  to  receive  at  the  rate  of  six  per  centum  per  annum 

.    126 


DECEMBER  TEEM,  1834.  138 

Tindall  t>.  Meeker. 

for  all  moneys  after  they  become  due  on  any  bond,  bill,  prom- 
issory note,  or  other  instrument  in  writing,  or  any  judgment 
recovered  before  any  court  or  magistrate  authorized  to  enter 
up  the  same  within  this  State,  from  the  day  of  signing  such 
judgment  until  the  effects  be  sold,  or  satisfaction  of  such  judg- 
ment be  made,"  etc. 

"  Provided,  always,  that  nothing  in  this  act  contained  shall 
be  so  construed  as  to  limit  the  rate  of  interest  for  the  pay- 
ment of  which  an  express  contract  hath  been  made."  To 
arrive  at  a  correct  understanding  of  the  question  how  far  this 
statute  applies  to  the  case  under  consideration,  it  is  necessary 
first  to  ascertain  the  duty  of  the  Circuit  Court,  in  the  trial  of 
appeals  from  the  decisions  of  justices  of  the  peace.  By  the 
34th  (K.  L.  395  ;  Gale's  Stat.  410)  section  of  the  "  Act  concern- 
ing Justices  of  the  Peace  and  Constables"  the  Court  shall  hear 
and  determine  appeals  in  a  summary  way,  without  pleading  in 
writing,  according  to  the  justice  of  the  case.  And  by  §  35  of 
the  same  act,  "  the  Court  shall  at  any  time  admit  such  amend- 
ment of  the  papers  and  proceedings  as  may  be  necessary  to  a 
fair  trial  of  the  case  upon  its  merits."  The  construction  put 
upon  these  sections  has  uniformly  been,  that  causes  brought 
up  by  appeal  from  justices'  courts  shall  be  tried  de  nowj  and 
the  judgment  below  furnishes  no  evidence  to  sustain  the  cor- 
rectness of  the  decision  of  the  justice.  It  consequently  fol- 
lows, that  when  the  cause  is  tried  in  the  Circuit  Court,  its  de- 
cision not  being  controlled  by  the  decision  below,  the  judg- 
ment must  be  for  whatever  sum  is  proved  to  be  due  on  the 
trial  in  the  Circuit  Court.  The  Court  therefore  decided  cor- 
rectly, that  the  plaintiff  below  was  entitled  to  the  amount  of 
the  notes,  together  with  interest  as  agreed  in  the  notes,  to  be 
calculated  from  their  respective  dates,  at  the  expressed  rates  of 
interest,  up  to  the.  time  of  rendering  judgment  in  the  Circuit 
Court.  Had  the  defendant  acquiesced  in  the  judgment  before 
the  justice,  then  the  plaintiff  could  only  have  collected  six  per 
cent,  interest  on  the  judgment,  whether  he  proceeded  by  exe- 
cution, or  by  action  of  debt  on  the  judgment  before 
any  other  court.  "  When  a  judgment  is  *obtained  [*139] 
upon  a  contract,  that  contract  ceases  to  exist  and 
is  merged  in  the  judgment,  and  the  judgment  is  operated 
upon  and  controlled,  not  by  the  contract,  but  by  the  statute." 
(Breese,  52.)  But  when  an  appeal  is  taken  from  a  justice's 
decision,  the  judgment  becomes  of  no  effect,  as  it  is  incum- 
bent on  the  plaintiff  to  produce  his  evidence  anew  in  the 
Circuit  Court.  It  comports  with  reason  and  justice,  that 
the  plaintiff  should  recover  all  he  proves  to  be  due  at  the 
time  of  trial ;  and  if  part  of  the  demand  gro  ,vs  out  of  an 

127 


130  VANDALIA. 


Tindiill  v.  Meeker. 


express  contract  to  pay  more  than  six  per  cent,  interest, 
he  has  by  the  terms  of  the  contract  a  right  to  recover  the 
interest  until  the  note  is  paid,  or  until,  by  a  judgment  that 
is  conclusive  on  both  of  the  parties,  it  ceases  to  be  a  contract 
inter  partes,  and  is  merged  in  a  contract  by  operation  of  law. 
The  second  assignment  is  equally  untenable.  When  the  action 
was  commenced,  and  the  judgment  rendered  by  the  justice,  he 
had  unquestionable  jurisdiction  of  the.  cause.  If  an  inferior 
court  entertains  jurisdiction  of  a  case,  and  gives  judgment, 
where  by  law  such  inferior  court  has  no  jurisdiction,  the  whole 
proceedings  are  corain  nonjudice  and  void  ;  and  all  acting  un- 
der such  void  judgment  would  be  trespassers.  Now,  can  it 
for  a  moment  be  allowed  if  no  appeal  had  been  taken,  that  the 
justice  and  constable  would  have  been  trespassers  if  an  exe- 
cution had  been  issued  on  the  judgment,  and  the  defendant's 
goods  taken  and  sold?  To  state  the  case  is  sufficient  to  show 
the  unreasonableness  of  the  proposition  that  the  defendant  by 
taking  an  appeal,  and  by  subsequent  delay  in  the  Circuit  Court, 
until  the  interest  had  accumulated  so  as  to  make  the  plaintiff's 
demand  exceed  $100,  such  subsequent  accumulation  should  re- 
late back  and  oust  the  justice  of  jurisdiction  of  a  cause  of 
which  when  adjudicated  he  had  legal  cognizance.  The  rule  in 
such  cases  is,  if  an  inferior  court  has  jurisdiction  ab  oriyine,  no 
subsequent  fact  arising  in  the  case  can  defeat  it  when  it  was 
lawful  in  the  inception.  It  has  not  been,  made  a  question 
whether  the  Circuit  Court  could,  if  the  plaintiff  had  not  re- 
mitted it,  have  given  judgment  for  more  than  $100,  yet  had 
the  Court  done  so,  upon  the  principle  here  stated,  that  the  Cir- 
cuit Court  ought  to  render  judgment  for  such  amount  as  ap- 
peared to  be  due,  it  would  probably  not  have  been  erroneous. 
The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

128 


DECEMBER  TERM,  1834.  140 

Hall  et  al.  v.  Byrne  et  al. 


*PHINEAS  C.   HALL  and   SAMUEL  B.   HALL,     [*140] 
plaintiffs  in  error,  v.  AUGUSTINE  BYRNE  & 
Co.,  defendants  in  error. 

Error  to  Jackson. 

MORTGAGE — CONSIDERATION. — A  mortgage  of  lands  is  not  a  note,  bond, 
bill  or  other  instrument  in  writing  within  the  meaning  of  the  act.  in  relation 
to  promissory  notes  ;  and  a  want  of  consideration  or  a  failure  of  consideration 
cannot  be  pleaded  to  a  scire  facias  to  foreclose  a  mortgage. 

CONSTRUCTION. — Statutes  which  treat  of  things  or  persons  of  an  inferior 
rank  can  not  by  any  general  icords  be  extended  to  those  of  a  superior.* 

THIS  was  a  scire  facias  brought  to  foreclose  a  mortgage.  The 
consideration  expressed  in  the  mortgage  is  one  dollar  in  hand 
paid  by  the  mortgagee  ;  and  in  the  defeasance  reciting  that 
James  Hall,  Jr.,  is  indebted  to  the  mortgagee  by  note  due  the 
1st  of  May,  1827,  in  the  sum  of  $997.74. 

The  defendants  below  pleaded  three  pleas  :  1.  A  want  of 
consideration  ;  2.  A  failure  of  consideration  ;  and  3.  A  part 
failure  of  consideration. 

To  each  of  these  pleas  the  plaintiffs  below  filed  a  general 
demurrer,  and  the  Court  sustained  the  demurrer  and  gave 
judgment  for  the  plaintiffs  below. 

The  cause  was  decided  at  the  April  term,  1834,  of  the  Jack- 
son Circuit  Court  by  the  Hon.  Thomas  C.  Browne. 

"W.  J.  GATEWOOD  and  W.  B.  SCATES,  for  the  plaintiffs  in 
error. 

If  an  action  at  law  be  commenced  upon  any  note,  bond,  bill 
or  other  instrument  in  writing  for  the  payment  of  money  or 
property  or  the  performance  of  covenants  or  conditions  by  the 
obligee  or  payee  thereof,  and  there  was  no  consideration,  or  it 
has  in  the  whole  or  in  part  failed,  it  may  be  pleaded  and 
judgment  shall  be  given  for  the  defendant  according  to  the 
fact.  R.  L.  482,  §  5.  (Gale's  Stat.  526.) 

It  is  laid  down  that  at  common  law  six  things  should  concur 
to  make  a  good  and  valid  contract,  the  fourth  of  which  is  that 

CITED  :  Construction1,  of  statutes,  3  Scam.  34  ;  Foreclosure  of  mortgage 
lij  scire  facias,  14  111.  216;  23  111.482;  26  111.  164. 

a  As  to  the  rule  that  statutes  which  treat  of  things  or  persons  of  an  infe- 
rior rank  can  not  by  any  general  words  be  extended  to  those  of  a  superior 
rank.  See  Re  Hermann,  71  N.  Y.  481 ;  Foster  t>.  Blount,  18  Ala.  687 ;  Wood- 
worth  r.  Paine,  Breese,  294;  Ellis  v.  Murray,  28  Miss.  129;  United  States  T. 
Weise,  2  Wall.  Jr.  72;  State  v.  Williams,  2  Strobh.  (S.  C.)  474;  Felt  t>.  Felt. 
19  Wis.  193;  State  v.  Goetze,  22  Wis.  365;  De  Winton  ».  Mayor  of  Brecon, 
26  Beav.  533. 

VOL.  I.-9  129 


140  VANDALIA. 


Hall  et  al.  v.  Byrne  et  al. 


there  be  a  good  and  sufficient  consideration  or  quid  pro  quo; 
this  had  relation  to  parol  contracts  or  agreements.  Comyn  on 
Cont.  2,  7,  8,  9,  13 ;  Chit,  on  Cont.  2-16,  and  authorities 
there  cited  ;  2  Blac.  Com.  442-445,  at  notes  8,  9,  10  ;  3  Bos. 
&  Pul.  294,  note  ;  Carson  v.  Clark,  decided  Dec.  term,  1823. 
(Ante  113.)' 

In  Pillans  v.  Van  Mierop  it  was  held  that  there  could  not 
be  a  nudum pactum  in  writing.  Comyn  on  Cont.  7;  3  Burr, 
1671. 

This  doctrine  was  overruled  in  the  case  of   Mary  Hughes' 

Exrs.  v.  Isabella  Hughes'  Admrx.,  7  Term  R.  350  n.  a. ;  7  Bro. 

Parl.  Cas.  551,  S.  C.,  where  it  was   held   that  in  all 

[*141]     contracts,  whether  *they  be  in  writing  or  not,  if  they 

be  not  specialties  a   consideration  must   be  proved1. 

Comyn  on  Cont.  8,  and  note  4,  9,   and  note  5  ;  2  Kent  Com. 

463-468. 

But  our  statute  has  placed  specialties  on  the  same  footing 
with  simple  contracts  at  common  law,  if  a  plea  of  a  want  or 
failure,  or  part  failure  of  consideration,  be  pleaded.  R.  L. 
483,  §  5. 

A  scire  facias  (except  in  some  few  cases)  is  a  new  action.  3 
Saund.  71,  note  4.  It  commands  the  sheriff  that  by  good  and 
lawful  men  he  make  known,  etc.;  and  the  sheriff  's  return  is, 
that  by  good  and  lawful  men.  naming  them,  he  made  known, 
etc.  Id.  617,  70. 

It  has  been  decided  not  to  be  amendable.  2  Tidd  Pr.  1037; 
and  the  scire  facias  by  our  statute  is  substituted  in  the  place 
of  a  declaration.  R.  L.  486,  §  43.  (Gale's  Stat.  529.)  Con- 
sequently, it  must  possess  all  the  requisites  of  form  and  sub- 
stance of  a  good  declaration.  Before  the  statute,  any  defect 
in  these,  or  the  sheriff 's  return,  must  have  been  objected  to 
by  motion  to  quash.  2  Tidd  Pr.  1037 ;  but  since  the  statute, 
it  is  in  the  nature  of  a  declaration,  and  not  a  summons;  the 
objection  is  not  in  abatement  by  motion  to  quash,  but  by  plea 
or  demurrer.  The  demurrer  opens  the  whole  of  the  plead- 
ings, and  although  the  pleas  may  be  defective,  yet  the  Court 
may  look  into  the  scire  facias,  and  if  it  be  defective,  give 
judgment  against  the  plaintiffs.  1  Chit.  PI.  647. 

A.  F.  GBANT  and  H.  EDDY,  for  the  defendants  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  a  scire  facias  brought  on  a  mortgage  of  land,  to 

sell  the  premises  under  the  18th  section  of  the  act  entitled, 

"  An  act  concerning  judgments  and  executions."  (R.  L.  376; 

Gale's  Stat.  393.)     To  the  scire  facias  the  defendants  below 

130 


DECEMBEE  TEEM,  1834.  141 

Hall  et  al.  v.  Byrne  et  al. 

pleaded  three  pleas,  to  wit:  1st.  That  there  was  no  con- 
sideration for  executing  the  mortgage  ;  2d.  A  failure  of  con- 
sideration ;  3d.  A  part  failure  of  consideration.  To  these 
pleas  the  plaintiffs  below  demurred,  and  the  Circuit  Court  sus- 
tained the  demurrer,  and  gave  judgment  for  the  amount  due 
on  the  mortgage,  and  that  the  lands  mentioned  therein  be  sold 
to  satisfy  the  same.  To  reverse  this  judgment  a  writ  of  error 
has  been  brought  to  this  Court,  and  the  only  error  assigned  is, 
that  the  Circuit  Court  erred  in  sustaining  the  demurrer  to 
these  pleas.  To  support  this  assignment,  the  counsel  for  the 
plaintiffs  in  error  rely  on  the  5th  section  of  the  "  Act  relative 
to  promissory  notes,  bonds,  due  bills,  and  other  instruments  in 
writing  (E.  L.  483;  Gale's  Stat.  526,)  and  making  them  assign- 
able." This  section  provides  that  "  In  any  action  commenced 
or  to  be  commenced  in  any  court  of  law  in  this  State,  upon  any 
note,  bond,  bill,  or  other  instrument  in  writing  for  the 
payment  of  money  or  property,  or  the  *performance  [*142] 
of  covenants  or  conditions,  by  the  obligee  or  payee 
thereof,  if  such  note,  bond,  bill,  or  instrument  in  writing  was 
made  or  entered  into  without  a  good  or  valuable  consideration; 
or  if  the  consideration  upon  which  such  note,  bond,  bill,  or 
instrument  in  writing,  was  made  or  entered  into,  has  wholly  or 
in  part  failed,  it  shall  be  lawful  for  the  defendant  or  defend- 
ants against  whom  such  action  shall  be  commenced  by  such 
obligee  or  payee,  to  plead  such  want  of  consideration,  or  that 
the  consideration  has  wholly  or  in  part  failed." 

Under  the  pleadings,  the  question  presented  for  the  con- 
sideration of  this  Court,  is  whether  a  mortgage,  executed  and 
recorded  according  to  the  statute,  is  a  "  note,  bond,  bill,  or 
other  instrument  in  writing,  for  the  payment  of  money  or 
property,  or  the  performance  of  covenants  or  conditions  by 
the  obligee  or  payee  thereof,"  and  liable  to  be  defeated  by 
either  of  the  pleas  above  mentioned.  To  arrive  at  a  satisfac- 
tory answer,  it  is  necessary  to  inquire  into  the  nature  and 
effect  of  a  mortgage.  "  A  mortgage  is  a  conveyance  of  lands, 
by  a  debtor  to  his  creditor,  as  a  pledge  or  security  for  the  re- 
payment of  money  due;  with  a  proviso  that  such  conveyance 
shall  be  void  on  payment  of  the  money  and  interest,  on  a  cer- 
tain day;  and  in  the  event  the  money  be  not  paid  at  the  time 
appointed,  the  conveyance  becomes  absolute  at  law,  and  the 
mortgagor  has  only  an  equity  of  redemption;  that  is,  a  right 
in  equity,  on  payment  of  principal,  interest,  and  costs,  within  a 
reasonable  time,  to  call  for  a  re-conveyance  of  the  lands." 
Cruise's  Dig.  89. 

From  this  defin'tion,  a  mortgage  of  lands  (the  execution  of 
which  is  attended  with  many  legal  solemnities,  and  must  be 

131 


142  YANDALIA. 


Hall  et  al.  v.  Byrne  et  al. 


acknowledged  and  recorded,  as  are  all  other  deeds  affecting 
real  estate)  can  not  be  such  an  instrument  in  writing  as  is  con- 
templated by  the  5th  section  of  the  act  aforesaid.  A  mort- 
gage is  certainly  not  made  negotiable  by  the  act,  nor  is  it  an 
instrument  for  the  direct  performance  of  covenants  or  condi- 
tions by  the  obligee  or  payee,  although  it  is  subject  to  be  de- 
feated by  the  payment  of  money.  Mortgages  were  in  common 
use  when  this  statute  was  passed,  and  had  the  legislature  in- 
tended to  have  them  defeated  by  such  pleas  as  were  inter- 
posed in  this  case,  there  can  be  no  doubt  that  they  would  have 
been  enumerated.  It  is  also  evident  that  mortgages  were  not 
intended  to  be  embraced  within  the  act,  because  the  legislature 
use  the  words  "obligee  or  payee,"  when  designating  the  plaint- 
tiff  to  whose  action  these  pleas  may  be  pleaded,  instead  of  the 
term  "mortgagee."  The  terms  " obligee  or  payee "  have  a 
technical  and  definite  meaning  in  the  statute  under  considera- 
tion, and  apply  only  to  notes,  bonds,  and  bills,  whether  such 

notes,  bonds,  or  bills  are  given  for  the  payment  of 
[*143]    *money  or  property,  or  the  performance  of  covenants 

or  conditions,  and  not  to  mortgages. 

It  is  also  a  well  settled  rule  of  the  common  law,  that  stat- 
utes which  treat  of  things  or  persons  of  an  inferior  rank,  can 
not  by  any  general  words  be  extended  to  those  of  a  superior. 
(1  Blac.  Com.  88 ;  Breese,  294.)  Mortgages  are  clearly  in- 
struments of  a  higher  dignity  than  bonds,  promissory  notes,  or 
bills,  because  greater  solemnity  is  required  in  their  execution. 
They  are  required  to  be  recorded,  and  the  same  remedy  given 
as  in  case  of  judgments.  The  Court  therefore  conclude,  as 
well  from  the  general  scope  and  object  of  the  act  relative  to 
"  promissory  notes,  bonds,  due  bills  and  other  instruments  in 
writing  and  making  them  assignable,"  as  from  the  considera- 
tion that  the  proceeding  authorized  in  this  case  is  by  scire 
facias,  and  founded  on  a  record,  that  a  mortgage  is  not  em- 
braced in  the  5th  section  of  the  act  above  mentioned  and  conse- 
quently the  pleas  were  correctly  overruled  by  the  Court  be- 
low. 

Judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


134 


DECEMBER  TERM,  1834  143 

Garner  et  al.  «.  Crenshaw. 


JARROT  GARNER  and  GEORGE  AYDOLLETT,   plaintiffs 
in  error,  v.  JOHN  CRENSHAW,  defendant  in  error. 

Error  to  Gallatin. 

SETTING  ASIDE  DEFAULT. — An  application  to  set  aside  a  default  is  ad- 
dressed to  the  sound  discretion  of  the  Court,  and  no  writ  of  error  will  lie  to 
correct  its  exercise. 

It  is  too  late  to  make  an  application  to  set  aside  a  default  after  one  term  of 
the  Court  has  intervened  between  the  term  at  which  the  default  was  taken 
and  that  at  which  the  motion  was  made. 

JUDGMENT  was  rendered  in  this  cause  by  the  Hon.  Thomas 
C.  Browne,  at  the  March  term,  1834,  of  the  Gallatin  Circuit 
Court 

A.  F.  GBANT,  for  the  plaintiffs  in  error. 
H.  EDDY,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  trespass  de  bonis  asportatis.  The  de- 
fendants appeared  and  pleaded  and  subsequently  withdrew 
their  plea,  letting  judgment  pass  by  default  against  them. 
An  order  for  the  execution  of  a  writ  of  inquiry  of  damages 
was  entered  ;  but  before  its  execution,  Garner,  one  of  the  de- 
fendants, moved  to  set  aside  the  default,  and  asked  leave  to  be 
permitted  to  plead.  The  Circuit  Court  refused  on  the  affida- 
vit of  Garner,  (which  disclosed  the  grounds  of  his 
application,)  to  set  aside  the  *default,  and  order  for  [*144] 
the  execution  of  the  writ  of  inquiry,  to  which  refusal 
the  defendants  excepted.  The  bill  of  exceptions  contains  the 
reason  of  the  Court  for  its  refusal,  which  is  that  one  term  of 
the  Court  had  intervened  between  the  term  at  which  the  de- 
fault was  taken,  and  that  at  which  the  motion  was  made.  It 
is  now  urged  by  the  counsel  for  the  plaintiffs  in  error,  that  the 
reason  given  is  an  insufficient  one,  and  that  the  default  ought 
to  have  been  set  aside  and  the  defendants  let  in  to  plead.  If 
the  grounds  of  the  application  to  the  Circuit  Court  were  ex- 
amined, they  would  be  found  to  present  no  reasonable  cause 
for  vacating  a  default,  virtually  acceded  to  by  the  defendants 
themselves,  by  the  withdrawal  of  their  plea ;  nor  would  the 
grounds  disclosed  in  the  affidavit  of  one  of  them,  furnish  any 

CITED:  24  111.  296;  41  111.  225;  5  Gilrn.  324;  40  111.  175.  Criticised 
24  111.  298. 

183 


YANDALIA. 


Piggott  v.  Ramey  et  al. 


\egsA  excuse  for  not  renewing  their  defense  in  time,  if  they 
had  so. desired  or  intended,  as  it  appears  that  one  full  term  had 
elapsed  before  the  application  to  set  aside  the  default. 

Apart,  however,  from  the  merits  of  the  application  to  the 
Circuit  Court,  it  will  be  perceived  that  an  application  to  set 
aside  a  default,  is  addressed  to  the  sound  legal  discretion  of 
the  Court,  and  that  no  writ  of  error  will  lie  to  correct  the 
erroneous  exercise  of  this  power.  The  entering  of  the  de- 
fault was  an  interlocutory  order,  and  its  vacation  depended  on 
the  exercise  of  this  discretionary  power  under  the  rules  and 
practice  of  the  Circuit  Court,  and  as  should  best,  under  those 
rules,  subserve  the  purposes  of  justice.  We  are  not  only  sat- 
isfied that  this  power  was  discreetly  exercised  in  the  present 
case,  and  conformably  to  its  justice,  but  that  the  refusal  to  set 
aside  the  default,  can  not  be  assigned  for  error. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


*LEVI  PIGGOTT,  surviving  executor  of  the  es- 
tate of  George  Ramey,  deceased,  plaintiff  in 
error,  v.  NANCY  RAMEY,  widow  and  relict  of 
George  Ramey,  deceased,  FOSTER  RAMEY, 
MICHAEL  PALMER  and  ELIZABETH,  his  wife, 
POLLY  RAMEY,  JOHN  SMITH  and  ELIZA,  his 
wife,  WILLIAM  RAMEY,  CATHARINE  RAMEY, 
THADEUS  W.  RAMEY,  minors,  who  sue  by 
their  next  friend,  Nancy  Ramey,  heirs  at  law 
of  George  Ramey,  deceased,  defendants  in 
error. 

Error  to  Monroe. 

LEGISLATIVE  CONTROL  OP  COURTS. — Where  the  legislature  directs  an  in- 
ferior court  as  to  the  mode  of  enforcing  its  orders  or  decrees,  such  court 
possesses  no  discretion,  but  must  proceed  conformably  to  the  mode  pre- 
scribed. 

COURT  OP  PROBATE. — A  Court  of  Probate  has  no  power  to  render  a  judg- 
ment in  favor  of  heirs  or  devisees  against  an  executor  or  administrator  for 
failing  or  refusing  to  pay  over  to  such  heirs  or  devisees  their  distributive 
portions  of  the  estate  of  the  deceased. 

Remedy.    Cited,  55111.  331. 

134 


DECEMBER  TERM,  1834  145 

Piggott  v.  Ramey  et  al. 

REMEDY. — If  an  executor  or  administrator  fail  or  refuse  to  comply  with 
the  order  of  the  Court  of  Probate  requiring  him  to  make  such  payment,  the 
remedy  is  by  attachment  for  contempt  of  Court. 

A  COWLES  and  N.  W.  EDWAKDS,  for  the  plaintiff  in  error, 
relied  upon  the  following  points  and  authorities: 

1.  No  action  lies  for  a  legacy  against  an  executor  without 
his  express  assent.     Cowper,  284  ;  7  Johns.  103-4  ;  10  Johns. 
31 ;  1  Chit.  Plead.  89,  95,  and  cases  cited  in  note  C. ;  Toller, 
365,  240  ;  1  Chit.  Plead.  101-2. 

2.  Executors  and  administrators  not  liable  at  law   until  a 
devastavit  is  legally   established.     Breese,    154;   Toller,  342, 
363-8. 

3.  Upon  a  declaration  against  an  executor  or  administrator 
the  judgment  can  only  be  tirst  .against  the  goods  and  chattels 
in  his  hands  to  be   administered.     2  Saunders,  117   d,   note  ; 
Tidd's  Appendix,  213. 

4.  From  the  uncertain  character  in  which  the  plaintiffs  be- 
low suej  no  judgment  can  properly  be  rendered.     9  Saunders, 
117,  f,  note  1. 

5.  The  interest  which  these  plaintiffs  took  under  the  will 
was  a  several  and  not  a  joint  interest.     1  Saunders,  154,  note. 

6.  ]STo  judgment  could    be   rendered   against  defendants 
without  showing  a  previous  demand  for  payment.     1  Mass. 
428  ;  §  121,  Act  relative  to  Wills  and  Testaments,  R.  L.  650. 

S.  BKEESE  and  A.  "W.  SNYDER  for  the  defendants  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  debt  brought  by  the  heirs  or  devisees 
of  George  Ramey,  deceased,  against  Levi  Piggott  as 
surviving  *executor  of  said  Ramey.  The  declaration  [*146] 
states  "  That  the  plaintiffs,  as  heirs  of  Ramey,  de 
ceased,  heretofore,  to  wit,  on  the  4th  day  of  January,  1830,  at 
a  Court  of  Probate  held  in  the  town  of  "Waterloo,  Monroe 
county,  by  the  Hon.  James  B.  Moor,  JVK  g )  of  probate  for 
said  county,  by  the  consideration  and  judgment  or  decree  of 
said  Court  recovered  against  the  said  Levi  Piggott  surviving 
executor  of  the  estate  of  George  Ramey,  deceased,  the  sum  of 
$389.29  which  was  then  and  there  adjudged  to  the  plaintiffs 
before  mentioned,  they  being  the  persons  entitled  to  the  same 
under  the  last  will  and  testament  of  the  said  George  Ramey, 
deceased,"  etc.  The  defendant  below  made  default  and  judg- 
ment was  given  for  the  plaintiffs  against  the  defendant  per- 
sonally for  the  above  mentioned  debt  and  costs  of  suit.  The 
cause  was  brought  into  this  Court  by  writ  of  error.  A  num- 

133 


14(5  YANDALIA. 


Piggott  v.  Ramey  et  al. 


her  of  errors  have  been  assigned.  It  will,  however,  be  unnec- 
essary to  examine  any  other  point  in  the  case  except  whether 
a  Court  of  Probate  had  any  power  to  render  a  judgment  in 
favor  of  heirs  or  devisees  against  an  executor  for  distributive 
shares  or  legacies  under  the  "  Act  relative  to  Wills  and  Tes- 
taments, Executors  and  Administrators  and  the  Settlement  'of 
Estates"  approved  January  23,  1829.  This  power  was,  on 
the  argument  of  the  case,  supposed  to  be  conferred  on  the 
Court  of  Probate  by  the  121st  arid  122d  sections  of  the  act. 
The  121st  section  directs  that  "  If  any  executor  or  adminis- 
trator shall  fail  or  refuse  to  pay  over  any  moneys  or  dividends 
to  any  person  entitled  thereto  in  pursuance  of  the  order  of  the 
Court  of  Probate  lawfully  made  within  thirty  days  after  de- 
mand made  for  such  moneys  or  dividend  the  Court  of  Probate, 
upon  application  made,  shall  attach  such  delinquent  executor 
or  administrator  and  may  cause  him  to  be  imprisoned  until  he 
shall  comply  with  the  order  aforesaid  or  until  such  delinquent 
is  discharged  by  due  course  of  law;"  and  this  section  further 
authorizes  a  suit  to  be  brought  on  the  bond  of  such  executor 
or  administrator  upon  his  neglect  or  refusal  to  comply  with 
such  order.  The  122d  section  provides  that  "  Whenever  it 
shall  appear  that  there  are  sufficient  assets  to  satisfy  all  de- 
mands against  the  estate  the  Court  of  Probate  shall  order  the 
payment  of  all  legacies  mentioned  in  the  will  of  the  testator, 
the  specific  legacies  being  first  satisfied."  (R.  L.  651 ;  Gale's 
Stat.  716.) 

The  Court  are  clearly  of  opinion  that  in  neither  of  these 
sections  is  any  authority  given  to  the  Court  of  Probate  to  ren- 
der a  judgment. 

The  word  order  used  in  both  sections  does  not  ex  vi  termini 
mean  a  judgment.  That  the  legislature  did  not  intend  to  con- 
\  fer  the  power  to  give  judgment  is  evident  from  the  consider- 
ation that  in  the  121st  section  provision  is  made  to  proceed 
against  the  executor  or  administrator  who  neglects  or 
[*147]  refuses  to  comply  with  *the  order  after  demand  be- 
ing made  by  attaching  and  imprisoning  him  for  con- 
tempt ;  and  in  neither  section  is  there  authority  to  issue  an 
execution. 

Had  the  legislature  intended  to  have  authorized  the  Court 
of  Probate  to  render  judgment  against  the  executor  or  admin- 
istrator, under  these  sections,  the  Court  would  unquestionably 
have  been  required  to  collect  such  judgment  by  the  usual  proc- 
ess of  execution.  The  legislature,  however,  has  only  given 
the  remedy  for  the  refusal  to  comply  with  an  order  of  the 
Court  of  Probate,  as  the  common  law  gives  to  courts  of  record 
in  similar  cases ;  to  wit,  an  attachment  for  contempt.  When 

136 


DECEMBEE  TEEM,  1834.  147 

Crisman  dt  al.  v.  Matthews. 

the  legislature  directs  an  inferior  court  as  to  the  mode  of  en- 
forcing its  orders  or  decrees,  such  court  possesses  no  discretion 
but  must  proceed  conformably  to  the  mode  prescribed.  The 
Court  are  further  confirmed  in  this  view  of  the  subject  by  the 
124th  section.  This  section  provides,  that  "  Executors  or  ad- 
ministrators shall  not  be  compelled  to  pay  legatees  or  distrib- 
utees, until  bond  and  security  be  given  by  said  legatees  or  dis- 
tributees, to  refund  their  due  proportion  of  any  debt  which 
may  afterward  appear  against  the  estate,  and  the  costs  attend- 
ing the  recovery  thereof  ;  and  such  bond  shall  be  made  pay- 
able to  such  executor  or  administrator,  and  shall  be  for  his  in- 
demnity, and  filed  in  the  Court  of  Probate."  This  provision 
is  entirely  inconsistent  with  the  idea  that  the  Court  of  Pro- 
bate has  power  to  give  a  judgment  which  is  a  final  disposition 
of  the  matter  in  controversy,  leaving  no  act  in  pais  to  be  done 
to  entitle  the  successful  party  to  an  execution  which  will  put 
him  in  possession  of  the  fruits  of  his  recovery.  But  if  we  con- 
sider the  order  mentioned  in  the  121st  and  122d  sections,  as 
liable  only  to  be  enforced  by  attachment  for  contempt,  then 
before  the  Court  of  Probate  could  issue  such  attachment,  evi- 
dence would  have  to  be  furnished  that  the  executors  had 
refused  to  pay  the  dividend,  and.  that  the  devisees  or  dis- 
tributees had  executed  the  bond  with  security,  required  by 
the  124th  section.  In  this  mode,  the  proceedings  before  the 
Probate  Court  would  comply  with  the  requisitions  of  the 
statute,  and  conform  to  analagous  proceedings  in  other 
Courts,  and  the  symmetry  of  legal  proceedings  would  be  pre- 
served. 

The  judgment  is  reversed  with  costs. 

Judgment  reversed. 


*JACOB    CRISMAN    and   MICHAEL    CRISMAN,     [*148] 
appellants,  v.  SAMUEL  T.    MATTHEWS,  ap- 
pellee. 

Appeal  from  Morgan. 

FORTTTCOMTNO  BOND— EFFECT  OF  JUDGMENT.— In  a  suit  by  a  sheriff  upon 
a  forthcoming  bond  taken  by  him  for  property  levied  on  by  an  attachment, 
it  is  unnecessary  for  the  plaintiff  to  show  that  the  attachment  was  actually 
levied  upon  the  property;  the  judgment  of  the  court  directing  the  property 
attached  to  be  sold,  is  conclusive  as  to  that  point. 

CITED:    21  111.  584;  44  111.  287.   See  11  111.  417;  17  111.  404;  24  111.  256. 

V37 


148  VANDALIA. 


Crisman  et  al.  v.  Matthews. 


A  defendant  in  a  forthcoming  bond  is  estopped  from  denying  that  an 
attachment  had  issued,  and  that  the  property  had  been  seized  and  taken 
by  the  sheriff  ;  the  recitals  in  the  condition  of  the  bond  admit  these  facts. 

THIS  case  was  tried  at  the  October  term,  1834,  of  the  Mor- 
gan Circuit  Court,  before  the  Hon.  Samuel  D.  Lockwood,  and 
a  judgment  rendered  for  the  appellee  for  $126.83.  i 


.  THOMAS,  for  the  appellants. 
M.  MCDONNELL,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court  : 
This  is  an  action  of  debt  instituted  in  the  Court,  below,  by 
the  appellee  against  Peter  D.  Mordecai  and  the  appellants,  up- 
on a  bond  executed  by  Mordecai  and  the  appellants,  the  latter 
as  sureties,  to  the  appellee  as  sheriff  of  the  county  of  Morgan. 
The  declaration  states  that  on  the  26th  day  of  April,  1832,  a 
certain  writ  of  attachment  issued  from  the  Circuit  Court  of 
Morgan  county,  at  the  suit  of  Elisha  Kellogg,  against  the  said 
teeter  D.  Mordecai,  for  two  hundred  and  fifty  dollars,  directed 
and  delivered  to  the  said  Matthews  as  sheriff  to  execute  and 
return  ;  that  by  virtue  of  said  writ,  the  said  sheriff  attached 
one  horse  and  other  property  of  said  Mordecai,  and  took  the 
same  into  possession  ;  that  Mordecai  being  desirous  of  retain- 
ing possession  of  the  property,  executed  a  bond,  with  the 
Crismans  as  sureties,  in  the  penalty  of  $500,  conditioned  that 
if  the  said  property  should  be  forthcoming  to  answer  such 
judgment  as  the  said  Court  might  render  against  the  said 
Mordecai  in  favor  of  Kellogg,  then  the  obligation  to  be  void. 
The  breach  alleged  is  that  Kellogg  obtained  a  judgment  on 
the  22d  of  June,-  1833,  for  two  hundred  and  fifty  dollars,  on 
which  judgment  a  special  execution  issued  on  the  12th  day  of 
July,  1833,  directed  to  the  sheriff  of  Morgan  county,  requir- 
ing him  to  sell  the  property  attached  as  aforesaid,  and  on  the 
23d  day  of  September,  1833,  the  sheriff  returned  the  execution 
indorsed  that  the  property  could  not  be  found,  whereby  an 
action  accrued  to  the  plaintiff  to  have  and  demand  the  debt 
aforesaid. 

At  the  May  term,  1834,  of  the  Circuit  Court,  the  defend- 

ants,  Jacob   and  Michael    Crisman,    appeared    and 

[*149]     pleaded  to  the  action  *in  substance,  that  Matthews,  the 

sheriff,  represented  that  he  had  levied  an  attachment 

on  the  personal   property  at  the  suit  of  Elisha  Kellogg,  and 

required  Mordecai  to  execute  the  bond  declared  on  for  the  de- 

livery of  the  property.     Whereas  in  truth  and  in  fact,  the  said 

sheriff  had  not  levied  the  attachment  on  the  said  property  or 

138 


DECEMBER  TERM,  1834  149 

Crisman  et  al.  v.  Matthews. 

any  part  thereof,  nor  did  he  make  any  return  on  the  attach- 
ment showing  that  he  had  levied  the  same.  To  this  plea  there 
was  a  demurrer,  and  the  Court  decided  the  plea  insufficient. 
The  defendants  then  had  leave  to  withdraw  the  plea  and  plead 
de  now  /  and  at  the  same  term  of  the  Court  tiled  another  plea, 
alleging  the  same  facts  but  differing  from  the  first  in  the  con- 
clusion. To  this  plea  there  was  also  a  demurrer,  which  the 
Court  sustained,  and  gave  leave  to  file  an  additional  plea,  and 
the  cause  was  continued.  At  the  October  term,  1834,  the 
defendants  filed  four  pleas.  The  first  after  craving  oyer  of  the 
bond,  alleges,  that  the  Circuit  Court  of  Morgan  county  never 
did  make  any  order  or  render  any  judgment,  requiring  any 
disposition  of  the  property  specified  in  the  bond,  or  requiring 
a  delivery  of  the  property  to  the  plaintiff,  or  a  sale  of  the 
same. 

The  second  plea  alleges  that  the  plaintiff  represented  to  the 
defendants,  that  by  virtue  of  an  attachment  issued  from  the  Cir- 
cuit Court  of  Morgan  county,  at  the  suit  of  Elisha  Kellogg 
against  Peter  D.  Mordecai,  he  had  levied  on  forty  acres  of 
land,  situated  in  the  county  of  Morgan,  and  the  personal  prop- 
erty specified  in  the  condition  of  the  bond  declared  on,  and  the 
defendants  relying  oh  the  representations  so  made  as  aforesaid, 
executed  the  said  bond,  as  sureties  for  the  said  Mordecai ; 
whereas  the  defendants  aver  that  the  plaintiff  never  had 
levied  the  said  attachment  on  the  land  aforesaid,  or  on  the 
personal  property  aforesaid,  by  reason  whereof,  the  said  Cir- 
cuit Court  nover  did  make  any  order  or  render  any  judgment 
requiring  a  sale  of  said  personal  property,  to  satisfy  the  judg- 
ment obtained  by  Kellogg  against  Mordecai  nor  conld  the 
plaintiff,  by  force  of  the  proceedings  had  in  the  said  Circuit 
Court,  lawfully  claim  or  seize  the  said  personal  property. 

The  third  plea  alleges  that  the  plaintiff  returned  the  attach- 
ment referred  to,  and  recited  in  the  bond  without  certifying  or 
indorsing  thereon  that  he  had  levied  the  same  on  the  personal 
property  mentioned  in  the  condition  of  the  bond,  or  any  part 
thereof,  by  reason  whereof  the  property  was  taken  and  con- 
veyed away  out  of  the  jurisdiction  of  the  Court,  by  the  said 
Peter  Mordecai,  and  the  Court  could  not,  by  reason  of  the  de- 
fault of  the  plaintiff,  render  any  judgment  in  said  suit,  and  sub- 
ject the  property  to  the  payment  thereof. 

The  fourth  plea  alleges  that  the  attachment  referred  to  and 
recited  in  the  condition  of  the  bond,  was  sued  out  by  Elisha 
Kellogg  against  Mordecai,  on  the  complaint  of  -said 
Kellogg,  ^alleging  that  said  Mordecai  was  about  to  de-      [*150] 
part  from  the  State,  with  the  intention  of  having  his 
effects  removed ;  that  the  said  Mordecai  never  was  served  with 

139 


150  VANDALIA. 


Crisman  et  aJ.  v.  Matthews. 


process  or  summoned  or  notified  to  answer  the  complaint  of 
paid  Kellogg  in  said  suit,  and  the  plaintiff  returned  the  attach- 
ment to  the  said  Court  without  certifying  or  indorsing  thereon 
that  he  had  levied  the  Fame  on  any  part  of  the  said  real  or 
personal  estate  of  said  Mordecai ;  whereupon  they  say  that  the 
said  judgment  in  favor  of  Kellogg  against  Moraecai,  is  null 
and  void,  and  of  no  force  or  effect. 

To  the  first  plea  tiled  in  October,  1834,  the  plaintiff  replied 
that  the  Circuit  Court  of  Morgan  county  had  rendered  judg- 
ment, and  required  the  property  specified  in  the  bond  to  be 
soM  to  satisfy  the  same,  concluding  with  a  verification,  etc. 
This  replication  was  joined  by  defendants.  The  plaintiff  de- 
murred to  the  other  three  pleas,  and  the  demurrer  being  joined, 
the  Court  decided  the  pleas  insufficient.  A  trial  was  then  had 
on  the  issue  taken  upon  the  first  plea,  and  the  Court  decided 
on  the  trial  of  that  issue,  that  the  judgment  in  favor  of  Kel- 
logg against  Mordecai,  was  sufficient  evidence  to  prove  the 
issue,  and  that  the  plaintiff  was  not  bound  to  produce  the  at- 
tachment and  show  by  the  return  thereon,  that  the  property 
had  been  attached,  and  gave  judgment  for  the  value  of  the  prop- 
erty. The  defendants  excepted  to  the  opinion  of  the  Court  in 
deciding  that  the  judgment  was  sufficient  evidence  to  prove 
the  issue,  and  have  brought  the  case  to  this  Court  by  appeal. 
The  errors  assigned  are : 

1.  The  Court  erred  in  sustaining  the  demurrer  to  the  plea 
filed  May,  1834. 

2.  The  Court  erred  in  sustaining  the  demurrers  to  the  pleas 
filed  October,  1834. 

3.  The  Court  erred  in  deciding  that  the  judgment  in  favor 
of  Kellogg  against  Mordecai  was  sufficient  evidence  to  prove 
the  issue  tried  by  the  Court,  and  that  it  was  not  necessary  for 
the  plaintiff  to  produce  the  attachment  and  show  by  the  return 
thereon,  that  the  property  mentioned  in  the  condition  of  the 
bond  had  been  attached. 

Two  questions  are  raised  for  the  consideration  of  the  Court 
upon  the  foregoing  statement  of  the  case,  and  the  errors  as- 
signed. 

1.  "Were  the  demurrers  to  the  2nd,  3d  and  4th  pleas  of  the 
defendant  properly  sustained?  I  pass  by  the  question  presented 
as  to  the  first  two  pleas  and  the  demurrers  thereto,  because  the 
defendants  having  withdrawn  the  pleas  after  the  judgment  on 
the  demurrers,  can  not  now  assign  that  for  error,  though  if  the 
pleas  were  considered,  they  would  not,  in  my  judgment,  alter 
the  present  result. 

140 


DECEMBER  TERM,  1834.  150 

Crisman  et  al.  v.  Matthews. 

2.     Was  the   evidence  under  the  issue  found  suffi- 
cient to  justify  *the  find  ing  of  the  Court,  and  the  ren-      [*151] 
dition  of  the  judgment  thereon  ? 

On  the  first  point  it  will  be  perceived  that  the  2nd,  3d  and 
4th  pleas  aver  a  state  of  facts  not  merely  controverting  the 
condition  set  forth  in  the  bond,  but  denying  the  power  of  the 
Circuit  Court  to  render  a  judgment  in  the  attachment  cause 
against  the  original  debtor.  They  also  partake  in  some  particu- 
lars of  a  plea  of  nul  tiel  record,  and  are  analogous  in  their 
form  and  matter.  From  a  consideration  of  them  they  will  be 
seen,  first,  to  attempt  to  put  in  issue  the  existence  of  matters 
distinctly  admitted  in  the  bond  ;  then  to  seek  to  controvert  the 
jurisdiction  of  the  Court  which  rendered  judgment  in  the  action 
of  attachment,  and  finally  to  deny  because  of  certain  alleged 
informalities,  as  to  the  levy  and  return  of  the  sheriff,  that  the 
Court  did  render  such  judgment  as  is  alleged  in  the  plaintiff's 
declaration. 

This  statement  of  their  principal  ingredients  and  qualities, 
shows,  without  further  observation,  that  pleas  containing  each 
within  themselves  such  matters  incongruously  joined,  could 
not  be  good. 

On  the  second  point,  I  am  clearly  of  opinion  that  the 
defendant  was  estopped  from  denying  the  admissions  made  in 
the  condition  of  the  bond,  or  of  controverting  their  existence. 
The  bond  recites  the  issuing  of  the  attachment  and  its  coming 
into  the  hands  of  the  sheriff ;  that  it  was  duly  levied  on  the 
property  of  Mordecai,  and  covenants  to  restore  it  to  answer 
such  judgment  as  the  Circuit  Court  might  render  against 
Mordecai. 

Can  it  be,  after  the  admission  of  the  defendants  of  these 
facts,  verified  by  the  most  solemn  legal  forms  known  to  the  law, 
that  they  shall  be  permitted  to  deny  them,  and  seek  to  avoid 
their  force  and  effect  by  a  resort  to  some  informal  or  insuf- 
ficient acts  of  the  sheriff,  in  the  manner  of  the  levy  or  the  re- 
turn of  the  process  ?  The  existence  of  the  judgment,  however, 
was  alone  by  the  pleadings  put  in  issue,  and  its  production  was 
sufficient  evidence  to  sustain  that  issue.  To  have  required 
more,  would  have  been  to  require  more  than  the  parties  had 
called  on  the  Court  to  investigate ;  and  not  only  so,  but  what 
had  been  already  solemnly  admitted  by  the  defendants  when 
they  became  a  party  to  the  bond.  The  production  of  the  orig- 
inal-attachment, with  the  return  of  the  officer  thereon,  was 
wholly  unnecessary,  because  the  judgment  was  in  itself  con- 
clusive. 

The  Supreme  Court  of  New  York  have  adopted  this  rule  in 
a  case  clearly  analogous.  A  sheriff  who  had  taken  a  bond  with 

141 


151  YANDALIA. 


McKinney  v.  Finch. 


sureties  for  the  limits  of  the  jail  granted  to  a  prisoner  in  exe- 
cution, was  sued  for  an  escape,  and  a  judgment  recovered 
against  him.  He  gave  notice  to  the  sureties  of  the  suit,  which 
was  regularly  defended  by  the  sheriff,  aided  by  the  sureties. 

The  sheriff  afterward  brought  an  action  on  the  bond 
[*152]      for  his  indemnity,  and  *it  was  held  that  the  recovery 

in  the  former  suit  was  conclusive  evidence  in  the  suit 
on  the  bond ;  and  that  the  defendants  could  not,  on  the  trial  of 
the  suit  against  them  on  the  bond,  controvert  the  fact  of  the 
escape.     {Kip  v.  Brigliam,  6  Johns.  158.) 
The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


JAMES  McKiNNEY,  appellant,  v.  ISAAC  FINCH,  appellee. 

Appeal  from  Morgan. 

FINAL  JUDGMENT  IN  JUSTICE  COURT. — Where  a  suit  is  brought  before  a 
justice  of  the  peace,  which  terminates  in  a  final  judgment  on  the  merits, 
there  both  parties  shall  be  precluded  from  further  litigation  in  relation  to 
all  matters  that  might  have  been  decided  in  that  case. 

CONSOLIDATION. — Where  two  distinct  suits  are  brought  before  the  same 
justice,  on  the  same  day,  upon  two  demands  which  might  be  consolidated 
into  one  suit,  and  which  when  thus  consolidated,  would  not  exceed  $100, 
and  one  suit  is  dismissed  and  judgment  is  rendered  in  the  other,  the  pro- 
ceedings are  regular. 

DISMISSAL  OP  SUIT  BY  JUSTICE. — The  dismissal  of  a  suit  by  a  justice  of 
the  peace,  is  in  effect  a  nonsuit,  and  does  not  bar  a  subsequent  suit  for  the 
same  demand,  or  for  a  different  cause  of  action. 

THIS  cause  was  tried  at  the  May  term,  1834,  of  the  Morgan 
Circuit  Court,  before  the  Hon.  Samuel  D.  Lockwood,  and  a 
judgment  rendered  for  the  appellee  for  $34.17,  and  costs. 
From  this  judgment  the  defendant  below  appealed  to  this 
Court. 

J.  LAMBORN,  for  the  appellant. 
WM.  THOMAS,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
Finch  sued  McKinney  before  a  justice  of  the  peace,  on  a  sealed 
note,  and  recovered  judgment.     The  suit  was  taken  into  the 
Circuit  Court  of  Morgan  county  by  appeal.     On  the  trial  in 

CITED:  57111.282.  See  11  111.564;  27111.170;  42  111.  £04;  Starr  &  C. 
111.  Stat.  1448.  Ch.  79,  H  49. 

142 


DECEMBER  TEEM,  1834.  If  2 

.  McKinney  v.  Finch. 

the  Circuit  Court,  Finch  gave  the  note  in  evidence.  McKin- 
ney then  proved  that  on  the  same  day  of  the  trial  of  the  cause 
before  the  justice,  there  was  a  previous  suit  in  favor  of  Finch 
against  McKinney,  which  was  founded  also  on  a  promissory  note, 
not  under  seal,  made  payable  to  the  plaintiff,  and  signed  James 
McKinney,  by  his  agent  John  A.  McKinney.  This  suit  the 
justice  dismissed,  because  the  agency  of  John  A;  McKinney 
was  not  sufficiently  established.  Both  suits  were  tried  before 
the  same  justice,  and  both  notes  did  not  amount  to  the  sum  of 
§100.  The  defendant  then  pleaded  and  relied  upon  the  16th 
section  (R.  L.  391 ;  Gale's  Stat.  406)  of  the  "Act  concerning 
Justices  of  the  Peace  and  Constables"  as  a  bar  to  the  action  ; 
but  the  Circuit  Court  overruled  the  defense,  and  gave  judgment 
for  the  sealed  note  above  mentioned.  The  Court  also  decided 
that  the  plaintiff  had  a  right  to  recover  on  one  note,  and 
*no  right  to  recover  on  the  other  note.  The  16th  [*153] 
section  above  referred  to  provides  that  "  In  all  suits 
which  shall  be  commenced  before  a  justice  of  the  peace,  each 
party  shall  bring  forward  all  his  or  her  demands  against  the 
other,  whicli  are  of  such  a  nature  as  to  be  consolidated,  and 
which  do  not  exceed  $100  when  consolidated  into  one  action  or 
defense ;  and  on  refusing  or  neglecting  to  do  the  same,  shall  be 
forever  debarred  from  the  privilege  of  suing  for  any  such  debt 
or  demand."  Did  the  Circuit  Court  err  in  overruling  the  defense 
set  up  under  this  section  of  the  act  regulating  trials  before  jus- 
tices of  the  peace?  Did  the  legislature  mean  that  the  bare 
commencement  of  a  suit,  in  which  the  plaintiff  and  defendant 
did  not  consolidate  all  their  demands,  should,  whether  the  cause 
was  tried  or  not,  bar  all  debts  or  demands  not  consolidated? 
The  objects  the  legislature  doubtless  had  in  view,  were  to  pre- 
vent the  multiplicity  of  suits,  where  the  matters  in  dispute 
were  small,  and  to  avoid  the  unnecessary  accumulation  of  costs. 
These  objects  are  effected,  by  deciding  that  where  a  suit  is 
commenced  before  a  justice,  in  which  all  the  demands  of  the 
parties  may  be  investigated  consistently  with  the  rules  of  law, 
and  such  suit  terminates  in  a  judgment  binding  upon  the  par- 
ties, if  the  parties  do  not  bring  forward  all  their  demands 
which  might  have  been  consolidated  into  one  action  or  defense, 
then  such  demands,  thus  neglected  to  be  exhibited,  shall  not 
be  the  foundation  of  a  future  action.  To  give  a  construction 
to  this  section,  that  the  commencement  of  a  suit  without  a  trial 
and  judgment,  should  bar  the  claims  of  both  parties,  would  be 
productive  of  the  greatest  injustice.  To  illustrate  this  posi- 
tion, we  will  suppose  the  following  case :  A  plaintiff  commences 
an  action  before  a  justice,  and  on  the  trial  discovers  that 
his  testimony  is  insufficient  to  support  his  action,  and  he  sub. 

143 


153  YANDALIA. 


Dedman  t>.  Williams. 


mits  to  a  nonsuit.  This  he  clearly  may  do,  and  then  bring  a 
new  suit  for  the  same  cause  of  action,  and  upon  sufficient  proof 
recover  his  demand.  Can  it  with  propriety  be  insisted  if 
the  judgment  of  nonsuit  in  the  supposed  case  does  not  bar  the 
demand  sued  on,  that  it  can  have  the  effect  to  sue  a  demand 
not  exhibited  before  the  magistrate — and  even  bar  a  demand 
of  the  defendant,  that  he  has  had  no  opportunity  to  litigate? 
These  would  be  the  absurd  consequences  of  deciding  that  the 
parties  must  bring  forward  all  their  demands  upon  pain  of 
forfeiting  them  if  a  suit  be  commenced  whether  that  suit 
result  in  a  final  judgment  or  not.  Such  consequences  were 
never  intended,  and  consequently  we  are  bound  to  give  this 
statute  such  a  construction  as  will  effect  the  objects  contem- 
plated by  the  legislature.  These  objects  are  accomplished  by 
construing  the  statute  to  mean,  that  where  a  suit  is  brought 
before  a  justice,  which  terminates  in  a  final  judgment  on  the 
merits,  there  both  parties  shall  be  precluded  from  further  liti- 
gation in  relation  to  all  matters  that  might  have  been 
[*154]  decided  in  that  case.  The  ^dismissal  of  the  case  first 
tried  by  the  justice,  was  in  effect  a  nonsuit,  and  did 
not  bar  the  bringing  of  a  new  suit  for  the  same  cause  of  action, 
and  consequently  could  be  no  bar  to  bringing  another  suit 
for  a  different  cause  of  action.  (Carson  v.  Clark,  ante,  113.) 
The  judgment  is  therefore  affirmed  with  costs. 

Judgment  affirmed. 


JOHN  DEDMAN,  appellant,  v.  LEVI  WILLIAMS,  appellee. 

Appeal  from  Hancock. 

CO-PURCHASERS— ACTION  BET-WEEK — PAYMENT  BY  NOTE. — One  man  can 
not,  by  his  own  voluntary  act,  make  himself  the  creditor  of  another. 

One  co-partner  or  co-purchaser  can  in  no  case  recover  in  an  action  for 
money  paid,  against  his  co-partner  or  co-purchaser,  until  the  money  has  act- 
ually been  paid;  nor  then  until  the  time  of  payment  has  arrived. 

The  giving  of  a  note  is  no  payment." 

THIS  cause  was  tried  at  the  August  term,  1834,  of  the  Han- 
cock Circuit  Court,  before  the  Hon.  Richard  M.  Young. 

CITED:  105  111.  643;  7  Bradw.  335;  Distinguished,  26  HI.  52. 

^Payment  by  note. 

The  giving  of  a  note  is  generally  held  not  to  operate  as  payment  of  a  pre- 
cedent debt  unless  it  is  expressly  accepted  as  such,  or  circumstances  show  that 
such  was  the  intent  of  the  parties. 

Muldon  v.  Whitlock,  1   Cow.  290;  Peter  v.  Beverly,  10  Pet.  567;  Haw- 


DECEMBEK  TEEM,  1834.  154 

Dedman  v.  Williams. 
A.  WILLIAMS,  for  the  appellant. 
T.  FORD  and  J.  "W.  WHITNEY,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  brought  before  a  justice  of  the  peace,  by 
Williams  against  Dedman,  for  money  paid  by  Williams  for  the 
use  of  Dedman.  On  the  trial  before  the  justice,  a  judgment 
was  rendered  in  favor  of  Williams  for  $72.37£.  The  cause 
was  brought  by  appeal  into  the  Circuit  Court  of  Hancock 
county,  where  it  was  tried  before  a  jury,  and  judgment  for 
$76.38  recovered.  On  the  trial  in  the  Circuit  Court,  the  plaint- 
iff below  proved  in  substance,  that  one  Whitney  and  others 
purchased  a  number  of  cattle  at  an  administrator's  sale,  for 
which  they  gave  their  notes  to  the  administrator.  That  after- 
ward the  plaintiff  and  defendant,  with  another  person,  pur- 
chased half  of  said  lot  of  cattle  of  Whitney  and  others,  paying 
them  $30  for  their  bargain,  and  agreed  to  give  their  note  in 
lieu  of  said  Whitney's  note  to  said  administrator,  he  agreeing 
to  accept  plaintiff's  and  defendant's  note  with  security,  for  one 
half  of  the  amount  of  Whitney's  note,  which  had  been  given 
for  the  original  purchase  money.  That  after  the  purchase 
made  by  plaintiff  and  defendant,  and  the  agreement  of  the  ad- 
ministrator to  take  plaintiff's  and  defendant's  note  for  half 
of  the  purchase  money  as  aforesaid,  plaintiff  and  defendant 
took  possession  of  the  half  of  said  lot  of  cattle,  as  their  joint 

ley  t>.  Foote,  19  Wend.  516;  Pratt  v.  Foote,  9  N".  Y.  466;  Swain  v.  Frazier, 
35  N.  J.  Eq.  326;  Brown  v.  Dunckel,  46  Mich.  29;  Mclntyrev.  Kennedy,  29 
Pa.  St.  448;  Merrick  v.  Boury,  4  0.  St.  60;  2  Daniel's  Neg.  Insts.  283,  §  1259. 

In  some  States  the  presumption  is  that  a  promissory  note  given  for  a  pre- 
cedent debt  is  a  satisfaction  thereof.  Mehan  r.  Thompson,  71  Me.  492 ;  Arold 
v.  Sprague,  34  Vt.  402;  Green  v.  Russell,  132  Mass.  536;  Weston  v.  Wiley,  78 
Ind. 54. 

See  Ex  p.  Williams.  17  S.  C.  396;  Morrisa  v.  Harvey,  75  Va.  726. 

Acceptance  of  note  of  third  party — Whether  payment.  See  Brigham  v. 
Lally.  130  Mass.  485;  Day  v.  Thompson,  65  Ala.  269;  Tucker  v.  Conwell, 
67  111.  552. 

For  full  discussion  of  general  subject,  see  2  Daniel's  Neg.  Instr.  283 
§  1259  et  seq. 

The  law  in  Illinois. 

A  negotiable  note  executed  by  the  debtor  in  settlement  of  his  debt  to  a 
third  person  at  the  instance  of  the  creditor,  or  to  the  creditor  himself,  is, 
prima  fade,  a  payment  of  the  original  debt:  Smalley  v.  Edey,  19  111.  211. 

The  giving  of  a  note  for  a  debt,  whether  sealed  or  unsealed,  does  not  pay  or 
discharge  the  debt,  unless  it  be  agreed  that  it  shall  be  accepted  as  payment 
and  satisfaction:  Walsh  t>.  Lennon,  98  111.  31.  Ompare  Morrison  v.  Smith, 
81  111.  22);  Gage  v.  Lewis,  68  111.  604;  Wilkinson  r.  Stewart,  30  111.  48; 
Fridley  v.  Bowen,  5  Bradw.  191;  Kappes».  Geo.  E.  White  Co.,  1  Bradw.  280; 
Coxv.  Keiser,  15 Bradw.  432;  Canadian  Bank  v.  McCrea,  106  111.  281 ;  McCon- 
neaughey  v.  Bogardus,  106  111.  321;  Scheerer  v.  Scheerer,  109111.  11. 
VOL.  l-io  145 


15-i  VANDALIA. 


Dedman  v.  Williams. 


property.  It  was  also  proved  that  plaintiff  and  de- 
[*155]  fondant  *were  to  execute  their  note  to  said  adminis- 
trator, at  some  convenient  time.  That  shortly  after 
these  contracts,  Dedman  started  with  the  cattle  to  Galena,  to 
sell  them  on  the  joint  account  of  plaintiff  and  defendant;  that 
during  the  absence  of  Dedman,  Williams  gave  his  note  with 
security  to  said  administrator,  for  the  price  of  said  cattle,  so 
purchased  of  the  said  Whitney.  And  the  said  Whitney  upon 
the  surrender  of  the  original  note,  executed  his  note  to  said 
administrator  for  the  other  half  of  the  original  purchase  money 
for  the  cattle  bought  at  said  administrator's  sale.  That  when 
Dedman  returned  from  Galena,  he  divided  with  Williams  the 
proceeds  of  the  sale  of  the  cattle.  The  administrator  testified 
that  he  held  and  considered  Dedman  liable  to  him  on  the  prom- 
ise to  give  his  note,  and  that  he  had  not  released  him.  On 
this  state  of  the  case,  Williams  brought  his  suit  against  Ded- 
man, to  recover  one  half  of  the  amount  for  which  plaintiff 
and  defendant  had  agreed  to  give  their  joint  note  with  security 
to  said  administrator.  Some  irrelevant  testimony  was  also  pro- 
duced, which  it  is  not  necessary  to  notice.  After  the  plaintiff, 
Williams,  had  concluded  the  testimony  as  above  detailed,  Ded- 
man's  counsel  moved  the  Court  to  instruct  the  jury  to  find  for 
the  defendant,  as  in  case  of  a  nonsuit,  which  motion,  after 
argument,  was  overruled  by  the  Court.  After  this  motion 
was  overruled,  testimony  was  introduced  by  defendant,  and 
other  instructions  were  asked  ;  but  from  the  view  taken  of  the 
cases  it  will  be  unnecessary  to  notice  any  other  point  except 
the  question  whether  the  Court  ought  to  have  instructed  the 
jury  that  the  plaintiff  was  not  entitled  to  recover  upon  the  evi- 
dence that  he  had  adduced. 

What  was  the  character  of  the  contract  between  the  plaint- 
iff and  defendant  ?  They  purchased  of  Whitney  a  lot  of  cat- 
tle, and  paid  him  $30  down,  and  for  the  remainder  of  the  pur- 
chase money,  agreed  to  give  their  joint  note  to  an  administra- 
tor, at  whose  sale  Whitney  had  purchased  the  same  cattle. 
When  the  note  was  to  be  made  payable,  does  not  appear  from 
the  testimony.  It  is,  however,  a  fair  presumption  that  some 
time  was  to  intervene  before  it  became  due.  Can,  then,  one  of 
two  joint  purchasers  of  property,  on  a  credit,  before  the  time 
of  credit  has  expired,  by  giving  his  individual  note  for  the 
purchase  money,  immediately  sue  his  co-purchaser  for  his  pro- 
portion of  the  joint  debt?  We  think  not.  The  rule  of  law  is 
well  settled  that  one  man  can  not  make  himself,  by  his  own 
voluntary  act,  the  creditor  of  another.  The  relation  that  ex- 
isted between  Williams  and  Dedman,  by  the  purchase  of  the 
cattle,  was  that  of  joint  owners  or  partners,  not  that  of  debtor 

116 


DECEMBER  TERM,  1834.  155 

Bruner  «>.  Manlove  et  al. 

and  creditor  to  each,  other.  Both  were  bound,  when  the  time 
of  payment  arrived,  to  make  payment  either  to  Whitney  or  to 
the  administrator  ;  and  neither  could,  by  any  act  of  his  own, 
coerce  payment  from  the  other  until  the  time  of 
^payment  for  the  cattle  had  arrived.  Nor  would  it  [*156] 
vary  the  result  of  the  case,  if  the  time  of  payment  for 
the  cattle  had  elapsed  when  this  suit  was  brought.  The  giving 
the  note  by  "Williams  for  the  property  purchased  for  the  joint 
use  of  himself  and  Dedman,  was  no  payment  so  far  as  Dedman 
was  concerned.  Dedman  was  certainly  bound  to  pay  his  moiety 
for  these  cattle,  either  to  Whitney  or  the  administrator  of 
whom  Whitney  purchased.  If  his  promise  to  give  his  note  to 
the  administrator  should  be  void  under  the  statute  of  frauds, 
upon  which  point  it  is  unnecessary  to  give  an  opinion,  he  would 
still  be  bound  to  pay  Whitney,  of  whom  he  and  Williams  made 
the  purchase.  As  we,  however,  consider  the  law  well  settled 
that  one  co-partner  or  co-purchaser  can  in  no  case  recover  in 
an  action  for  money  paid,  against  his  co-partner  or  co-purchas- 
er, until  the  money  has  actually  been  paid,  nor  then  until  the 
time  of  payment  has  arrived,  we  are  of  opinion  that  the  in- 
struction ought  to  have  been  given.  Had  the  instruction  been 
given,  the  plaintiff  would  doubtless  have  submitted  to  a  non- 
suit. This  Court,  therefore,  reverse  the  judgment  below,  and 
render  such  judgment  as  ought  to  have  been  rendered,  to  wit, 
a  judgment  as  in  case  of  nonsuit  with  costs. 

Judgment  reversed,  and  judgment  of  nonsuit  rendered. 


JOHN  GALLIPOT,  ex  dem.  JOHN  BRUNER,  plaintiff  in  er- 
ror, v.  JONATHAN  D.  MANLOVE  and  MOSES  MANLOVE, 
i     defendants  in  error. 

Error  to  Schwjler. 

LAND  PATENT — EVIDENCE  OF  TITLE — SENIORITY. — Where  two  patents 
have  issued  for  the  same  lands  to  different  persons,  at  different  times,  the 
elder  patent  is  the  highest  evidence  of  title,  and,  so  long  as  it  remains  in 
force,  is. conclusive  against  a  junior  patent. 

SAMK — PAKOL  EVIDENCE.— A  patent  can  not  be  impeached  by  parol  in 
an  action  of  ejectment. 

CERTIFICATE  OP  REGISTEKOF  LAND  OFFICE. — The  certificate  of  the  Reg- 
ister of  a  Land  Office,  of  the  purchase  of  a  portion  of  the  public  lands  of 
the  IT.  S.,  is,  under  the  statute  of  this  State,  of  as  high  a  character  in  point 
of  evidence  as  a  patent,  in  an  action  of  ejectment;  and  is  to  be  governed  by 
the  sanJe  rules  of  interpretation.  The  elder  certificate  is  conclusive  against 
a  subsequent  one. 

CITED:  3  Scam.  99;  18  111.  458. 

See  3  Scam.  113;  5  Gilm.  573;  19  How.  323;  post  344,  380. 

147 


156  VANDALIA. 


Bruner  v.  Manlove  et  al. 


THIS  was  an  action  of  ejectment  tried  at  the  October  term? 
1834:,  of  the  Schuyler  Circuit  Court,  before  the  Hon.  Kichard 
M.  Young. 

The  cause  was  submitted  to  a  jury,  and  the  jurors  not  being 
able  to  agree  upon  their  verdict,  were  discharged,  by  consent 
of  parties,  and  the  following  agreement  entered  on  the  records 
of  the  Court : 

"  In  this  cause,  the  jury  having  been  out  and  re- 
[*157]  turned  to  the  *Court,  and  reported  that  they  could 
not  agree  upon  a  verdict,  thereupon  the  parties  agree 
that  the  jury  be  discharged,  and  that  a  judgment  may  be  en- 
tered against  the  plaintiff  in  the  same  manner,  and  be  placed  in 
the  same  situation,  as  to  both  parties,  that  the  case  would  have 
been  if  the  jury  had  found  a  verdict  against  the  plaintiff,  and 
the  said  judgment  had  been  rendered  thereon.  And  the  cause 
is  to  stand  in  all  respects  as  though  a  trial  had  been  had,  and  a 
verdict  given  against  the  plaintiff  ;  and  this  agreement  shall  be 
entered  upon  the  records  of  this  Court,  and  made  a  part  there- 
of. 

JOHN  GALLIPOT, 
By  B.  McCoNNEL,  his  attorney. 
WALKER  &  MINSHALL, 

Attorneys  for  defendants. 

Upon  the  trial  in  the  Court  below,  the  following  bill  of  ex- 
ceptions was  taken : 

"  The  plaintiff  in  this  cause  proved  the  possession  by  the  de- 
fendants, and  produced  the  following  certificate  of  the  Regis- 
ter of  the  Land  Office,  and  proved  the  hand  writing  of  the 
Register,  and  offered  the  same  in  evidence  to  the  jury,  which 
was  objected  to  by  the  defendants,  which  objection  was  over- 
ruled by  the  Court,  and  the  certificate  read  as  evidence  by  the 
plaintiff,  to  which  opinion  of  the  Court,  the  defendants  by 
their  counsel  except ;  the  said  certificate  is  in  the  words  and 
figures  following,  to  wit : 

'LAND  OFFICE,  SPRINGFIELD,  ILLINOIS, 
November  the  3d,  1834. 

I,  William  L.  May,  Register  of  the  Land  Office  at  Spring- 
field, Illinois,  certify  that  on  the  third  day  of  August,  eighteen 
hundred  and  thirty,  John  Bruner  purchased  of  the  United 
States,  at  this  office,  the  North  West  quarter  of  Section  thirty, 
of  Township  two  North,  of  range  one  West  of  the  fourth 
principal  meridian,  as  appears  from  the  records  on  file  in  this 
office. 

WILLIAM  L.  MAT,  Reg'r.' 

The  defendants  then  offered  in  evidence  the  certificate  of 
the  Register  of  the  same  Land  Office,  which  was  objected  to 

148 


DECEMBER  TERM,  1834.  157 

Bruner  p.  Manlove  et  aL 

by  the  plaintiff,  which  objection  was  overruled  by  the  Court, 
and  the  said  certificate  permitted  to  be  read  as  evidence.  The 
said  defendants  also  offered  in  evidence  a  duplicate  receipt 
from  the  Receiver  of  said  Land  Office,  for  said  land,  dated 
the  29th  day  of  January,  1831,  which  was  objected  to  by  the 
'  plaintiff,  which  objection  was  overruled  by  the  Court,  and  said 
duplicate  receipt  was  read  as  evidence.  Said  duplicate  receipt 
from  the  Receiver,  and  said  certificate  of  the  Register,  is  in 
the  words  and  figures  following  : 

*'  RECEIVER'S  OFFICE,  SPRINGFIELD,     [*158] 
No.  4654  January  the  29th,  1831. 

Received  from  Jonathan  D.  and  Moses  Manlove,  Schuyler 
county,  111.,  the  sum  of  one  hundred  and  ninety-seven  60-100 
dollars,  being  in  full  for  N.  W.  qr.  of  Section  No,  30,  Town- 
ship No.  2  North,  Range  No.  1  W".  4th  PL  Mer'd.  containing 
158  08-100  acres,  at  the  rate  of  $1.25  pr.  acre. 
Pre-emption  Act,  1830.  JOHN  TAYLOR,  Receiver.' 

$197  60-100. 

*  LAND  OFFICE,  SPRINGFIELD,  ILLINOIS, 
September  19th,  1834. 

I,  "William  L.  May,  Register  of  the  Land  Office  at  Spring- 
field, Illinois,  do  hereby  certify  that  Jonathan  D.  Manlove 
and  Moses  Manlove,  of  Schuyler  county,  Illinois,  did  on  the 
29th  day  of  January,  one  thousand  eight  hundred  and  thirty- 
one,  purchase  of  the  United  States,  at  the  Xand  Office  afore- 
said, by  virtue  of  the  provisions  of  an  act  of  Congress  ap- 
proved on  the  29th  of  May,  1830,  entitled  u  An  act  to  grant 
pre-emption,  rights  to  the  settlers  on  the  public  lands"  the 
North  West  quarter  of  Section  number  thirty,  in  Township 
number  two  North  of  the  base  line,  in  Range  number  one  West 
of  the  fourth  principal  meridian,  containing  one  hundred  and 
fifty-eight  acres  and  eight  hundredths  of  an  acres ;  all  of 
which  facts  appear  of  record  in  the  books  on  file  in  this  office. 

Given  under  my  hand  the  day  and  date  above  written. 

WILLIAM  L.  MAY,  Register  of  the 
Land  Office  at  Springfield,  Illin's.' 

The  defendants  then  offered  to  prove  that  the  defendants 
were  in  possession  of  the  land  in  question,  and  cultivated  the 
same  several  years  before  the  purchase  of  said  land,  either  by 
Bruner  or  the  defendants,  which  was  objected  to  by  the 
plaintiff,  which  objection  was  overruled  by  the  Court,  and  the 
witness  produced  and  sworn,  who  testified  that  said  defend- 
ants had  been  in  possession  and  cultivated  said  land  for  seven 
or  eight  years,  except  a  part  of  the  time  they  had  been  a  trip 
to  the  mines,  out  of  Schuyler  county,  but  what  time  they 
were  at  the  mines,  witness  did  not  recollect 


158  VAKDALIA. 


Bruner  t>.  Manlove  et  al. 


To  the  opinion  of  the  Court  in  admitting  said  evidence,  the 
plaintiff  excepts.  The  testimony  being  closed,  and  tho  argu- 
ment of  counsel  heard,  the  plaintiff  moved  the  Court  to  in- 
struct the  jury  as  follows,  to  wit: 

1st.  That  the  certificate  of  the  Register  of  the  Land  Office, 
showing  a  sale  of  the  land  to  John  Bruner,  in  August,  1830, 
was  evidence  of  title  in  the  plaintiff,  until  a  better,  legal  and 
paramount  title  be  exhibited. 

2d.  That  the  certificate  of  the  register  and  dupli- 
[*159]  cate  of  the  *Receiver  of  the  Land  Office  at  Spring- 
field, showing  a  sale  of  the  same  land  in  question  to 
the  defendants,  by  the  United  States,  after  said  sale  of  said 
land  to  Bruner,  is  not  a  better,  legal  and  paramount  title  for 
said  land  to  defendants. 

3d.  That  the  first  sale  and  conveyance  of  a  tract  of  lan<J  by 
the  United  States  must  prevail  in  a  court  of  law  against  any 
subsequent  sale  and  conveyance  of  the  same  land  to  a  third 
person. 

Whereupon  the  Court  gave  the  instructions  numbers  one  and 
three  as  prayed  for,  and  refused  to  give  instruction  number 
two,  to  which  opinion  of  the  Court  in  refusing  to  give  said 
last  mentioned  instruction,  the  plaintiff  excepts.  The  defend- 
ants then  moved  the  Court  to  give  the  jury  the  following  in- 
structions, to  wit : 

1st.  To  entitle  the  plaintiff  to  recover  he  must  prove  that 
he  had  such  a  title  to  the  land  before  he  instituted  his  suit 
as  by  law  is  deemed  in  the  action  of  ejectment  a  legal  title, 
and  paramount  to  defendants'  title. 

5th.  That  if  the  jury  finds  for  the  defendants  and  the  plaint- 
iff Bruner  gets  a  patent  for  the  land  in  dispute  he  may  bring 
another  action  against  the  defendants,  and  the  present  action 
is  no  bar  to  such  further  suit,  (the  1st,  2d,  4th  and  6th  in- 
structions asked  by  defendants  were  refused,)  which  instruc- 
tions were  objected  to  by  the  plaintiff,  which  objections  were 
overruled  by  the  Court  and  the  instructions  given  to  the  jury. 
To  which  opinion  of  the  Court  the  plaintiff  excepts;  all  of  which 
several  exceptions  and  this  bill  of  exceptions,  the  plaintiff  now 
prays  may  be  signed  and  sealed  by  the  judge  and  made  a  part 
of  the  records  in  this  case. 

Let  the  same  be  so. 

Done  in  open  court  November  term  of  the  Schuyler  Cir- 
cuit Court,  A.  D.  1834. 

RICHAKD  M.  YOUNG,  [L.  s.] 
Circuit  Judge,  etc.  etc. 

The  cause  was  brought  to  this  Court  by  writ  of  error. 

The  errors  assigned  are : 

150 


DECEMBEK  TEEM,  1834.  '  159 

Bruner  v.  Manlove  et  al. 

1.  The  Court  erred  in  permitting  to  be  read  to  the  jury  as 
evidence  the  certificate  of  the  Register  of  the  Land  Office  at 
Springfield,  Illinois,  showing  a  sale  of  the  land  in  question  in 
January,  1831,  to  taid  Manloves. 

2.  The  Court  erred  in  permitting  the  defendants  to  prove 
that  they  were  in  rossession  of,  and  cultivated  said  land  prior 
to  the  sale  of  said  ^md  by  the  United  States  to  the  said  John 
Bruner,  as  shown  by  the  certificate  of   the  Register  of   the 
Land  Office  at  Springfield,  Illinois. 

3.  The  Court  erred  in  refusing  to  give  the  second 
instruction  *as  prayed  for  by  the  plaintiff,  and  in  re-     [*160] 
fusing  to  give  the  instruction  as  asked  by  the  plaint- 
iff. 

4.  The  Court  erred  in  giving  the  instructions  prayed  for  by 
the  defendants. 

The  defendants  refused  to  join  in  error  and  the  cause  was 
heard  ex  parte. 

MUKKAY  McCoNNELL,  for  the  plaintiff  in  error,  cited  R.  L. 
280  (Gale's -Stat.  287);  Jacksan  v.  Lawton,  10  Johns.  23; 
Jackson^.  Hart,  12  Johns.  81;  2  Harris  and  McHenry's  141-4; 
3  Story's  Laws,  1976. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  ejectment  brought  to  recover  posses- 
sion of  the  North  West  quarter  of  Section  30,  Town  2,  North, 
of  Range  1,  West  of  the  4th  principal  meridian,  lying  in  the 
county  of  Schuyler.  A  verdict  was  rendered  for  the  defendant. 
On  the  trial  the  plaintiff  offered  in  evidence  a  certificate  of  the 
Register  of  the  United  States  Land  Office  at  Springfield,  in 
this  State,  dated  November  3d,  1834,  by  which  it  was  declared 
that  on  the  3d  day  of  August,  1830,  John  Bruner  purchased 
of  the  United  States  at  the  said  office  the  land  in  queistion,  as 
appeared  from  the  records  on  file  in  said  office,  whch  was 
objected  to  but  admitted  by  the  Court,  the  handwriting  of 
the  register  being  proved.  The  plaintiff  also  proved  the 
possession  of  the  land  by  the  defendants.  The  defendants  then 
offered  in  evidence,  which  was  objected  to  by  the  plaintiff,  a 
duplicate  receipt  of  the  receiver  of  public  moneys  at  Spring- 
field, dated  29th  of  January,  1831,  which  expressed  to  have  re- 
ceived of  the  defendants  the  sum  of  $197.60,  being  in  full  for 
the  same  land  ;  also  a  certificate  of  the  Register  of  the  said 
Land  Office  dated  19th  of  September,  1834,  which  declared  then 
on  the  29th  of  January,  1831,  the  defendants  purchased  of  that 
United  States  at  the  said  Land  Office,  by  virtue  of  the  provision 
of  an  act  of  Congress  approved  on  the  29th  of  May,  1830,  es- 

1:1 


160  VANDALIA. 


Bruner  v.  Manlove  et  al. 


titled,  "  An  act  to  grant  pre-emption  rights  to  settlers  on  the 
public  land-s"  the  same  tract  of  land  which  appeared  of  record 
ni  said  office.  The  Circuit  Court  admitted,  notwithstanding  the 
objection  of  the  plaintiff,  the  last  two  certificates  to  be  read 
in  evidence.  The  defendants  were  also  permitted  to  prove, 
notwithstanding  the  objection  of  the  plaintiff,  that  the  defend- 
ants were  in  possession  of  the  land  in  question,  and  cultivated 
the  same  several  years  before  the  purchase  of  the  land  either 
by  Bruner  or  the  defendants,  except  a  portion  of  time  when  they 
had  been  out  of  the  county  at  the  mines ;  but  how  long  a 
time  the  witness  could  not  state.  Several  sets  of  instructions 
were  prayed  for  and  either  given  or  refused.  But  it 
[*161]  is  not  deemed  essential  to  refer  to  more  than  *one 
asked  for  by  the  plaintiff's  counsel  and  refused  to  be 
given  by  the  Court,  viz.:  the  2d,  "  That  the  certificate  of  the 
Kegister  and  duplicate  of  the  Receiver  of  the  Land  Office 
•at  Springfield,  showing  a  sale  of  the  same  land  in  question 
to  the  defendants,  by  the  United  States,  after  said  sale  of  said 
land  to  Bruner,  is  not  a  better  legal  and  paramount  title  for 
said  land  to  defendants." 

On  this  state  of  the  case  three  questions  seem  naturally  to 
arise  out  of  the  evidence  on  the  second  instruction  prayed 
for: 

1st.  What  is  the  rule  in  reference  to  the  conveyance  by 
the  government  of  the  United  States  of  its  land,  where  there 
are  two  sales  and  conveyances  of  the  same  land  to  different 
persons  and  at  different  periods  of  time? 

2d.  What  is  the  character  and  effect  and  what  the  extent 
of  the  rights  of  the  parties  derived  from  the  certificates  of 
the  United  States  Land  Officers  by  the  laws  of  this  State  ? 

3d.  Was  the  refusal  of  the  Court  to  give  the  instruction 
i  prayed  for  by  the  plaintiff's  counsel  an  error  ? 

On  the  first  point  we  presume  that  a  patent  for  land,  or  any 
mode  of  sale  adopted  by  the  government  for  the  disposition 
of  the  public  domain,  must  be  subject  to  the  same  rules  of  in- 
terpretation as  ordinary  cases.  It  will  not,  we  apprehend,  be 
for  a  moment  contended  to  be  otherwise.  What  then  is  the 
ru  e  where  two  patents  have  issued  for  the  same  lands  to  dif- 
ferent persons  at  different  times?  The  elder  patent  is  the 
highest  evidence  of  title  and  as  long  as  it  remains  in  force  it 
is  conclusive  against  a  junior  patent.  The  second  patent  is  in- 
operative and  void  if  the  land  passed  by  the  first  patent. 

It  is  the  almost  universal  rule  of  our  courts  to  look  to  the 
elder  patent  in  all  questions  of  title  and  to  give  it  effect.  It 
is  not  for  the  Court  to  look  to  any  equitable  claim  on  the  gen- 
eral government  which  a  third  party  might  have  in  respect  to 

152 


DECEMBER  TERM,  1834.  161 

Bruner  v.  Manlove  et  al. 

lands  conveyed  to  another  person  prior  to  the  issuing  of  the 
patent.     (Jackson  ex  dem.  Mancius  v.  Lawton,  10  Johns.  23  ; 

Jackson  v. ,  4  Johns.    163  ;    Jackson   v.   Hart^   12 

Johns.  77,  81.) 

The  elder  patent  must  be  impeached  and  vacated  before  any 
title  can  be  set  up  under  the  younger  one,  and  it  can  not  be 
impeached  by  parol  proof  in  such  an  action  as  the  present. 
Letters  patent  are  matter  of  record  ;  they  can  alone  be  avoided 
in  chancery  by  a  writ  of  scire  facias  sued  out  on  the  part  of 
the  government  or  by  some  one  prosecuting  in  its  name  or  by 
a  bill  in  chancery.  The  settled  English  practice  is  so  and  we 
have  no  law  or  practice  prescribing  a  different  course.  By  an 
examination  it  will  be  found  that  the  authorities,  both  English 
and  American,  speak  of  the  case  of  two  successive  patents  for 
the  same  thing  and  that  the  second  patent  is  void,  though  some 
differ  as  to  which  shall  pursue  the  remedy  to  vacate  either. 
The  better  construction,  however,  and  one  more  con- 
sonant to  the  nature  of  *the  case  seems  to  be  that  [*162] 
the  scire  facias  should  be  prosecuted  by  the  second 
grantee  to  avoid  the  first,  it  being  a  matter  of  record,  or  that 
he  pursue  his  remedy  by  bill  in  chancery.  (King  v.  Avery,  2 
Term  R.  515  ;  Daniel's  Case,  Dyer  133.) 

In  Virginia,  by  a  law  of  that  State,  a  patent  may  be  declared 
void  from  defects  appearing  on  its  face  without  the  necessity 
of  resorting  to  a  scire  fawas  to  repeal  it.  {Alexander  v. 
Greenup,  1  Munf.  134 ;  R.  C.  of  Virginia,  of  1819,  Yol.  I, 
466.)  Considering  then  that  the  rule  of  law  is  as  stated,  in  ref- 
erence to  two  patents  issued  at  different  times  to  different 
persons  for  the  same  thing,  we  are  necessarily  led  to  the  con- 
sideration of  the  second  point,  in  which  is  to  be  examined  the 
character  and  effect  of  the  certificates  of  the  register  and 
receiver,  and  the  rights  of  the  respective  parties  under  them. 

By  the  4th  section  of  the  act  declaring  what  shall  be  evi- 
dence in  certain  cases,  approved  10th  January,  1827  (R.  L. 
280  ;  Gale's  Stat.  287),  it  is  declared  that  "  The  official  certif- 
icate of  any  register  or  receiver  of  any  Land  Office  of  the 
United  States  to  any  fact  or  matter  on  record  in  his  office  shall 
be  received  as  evidence  in  any  court  in  this  State,  and  shall  be 
competent  to  prove  the  fact  so  certified.  The  certificate  of 
any  such  register  of  the  entry  or  purchase  of  any  tract  of  land 
within  his  district  shall  be  deemed  and  taken  to  be  evidence  of 
title  in  the  party  who  made  such  entry  or  purchase,  or  his 
heirs  or  assigns,  to  recover  possession  of  the  land  described  in 
such  certificate,  in  any  action  of  ejectment  or  forcible  entry  and 
detainer,  unless  a  better  legal  and  paramount  title  be  exhibited 
for  the  same."  From  this  section  of  that  act  it  is  manifest 

153 


162  YANDALIA. 


Bruner  v.  Manlove  et  aJ. 


that  the  register's  certificate  is  raised  to  as  high  a  character  in 
point  of  evidence,  in  the  present  form  of  action,  as  a  patent 
possibly  could  be.  Its  effect  is  to  be  the  same  and  the  rights 
derived  from  it  for  the  purpose  of  recovering  or  maintaining 
possession  of  lands  described  in  it  are  co-extensive  with  the 
most  formal,  regularly  issued  patent. 

These  certificates  not  only  vest  the  title  acquired  by  purchase 
from  the  government  in  the  purchaser  for  the  purposes  named 
but  make  that  title  transmissible  to  the  heir  or  to  the  assignee. 
For  any  purpose  then,  so  far  as  regards  the  character  of 
these  certificates  as  evidence  in  an  action  of  ejectment,  they 
mast  be  considered  of  as  high  dignity  as  patents  and  partaking 
of  all  their  legal  attributes.  Having  settled  their  character 
and  effect  the  rights  of  the  parties  under  them  must  be  gov- 
erned by  the  same  rules  of  interpretation  as  in  the  case  of 
patents.  No  reason  can  exist  for  an  exception.  There  is, 
however,  a  point  of  some  importance  in  the  case  which  seems 
not  to  have  been  adverted  to  by  counsel  in  the  Court  below  or 

here.     The  certificate  of  the  register  given  to  Bruner 
[*163]     shows  the  fact  that  the  land  was  *  purchased  after  the 

passage  of  the  pre-emption  law.  But  whether  the  de- 
fendants established  their  right  to  the  pre-emption  at  the 
Land  Office,  before  or  after  the  purchase  by  Bruner,  does  not 
appear  in  the  case.  We  might  presume  it  was  subsequent 
thereto,  and  at  the  time  of  the  payment  of  the  purchase  money  ; 
but  the  register's  certificate  is  given  on  the  19th  Septem- 
-ber,  1834,  and  recites  that  the  purchase  was  made  in  pursuance 
of  the  act  of  the  29th  May,  1830.  But  the  receiver's  certifi- 
cate negatives  the  idea  of  its  being  a  pre-emption  purchase  by 
defendants,  for  there  is  no  recital  in  the  receiver's  certificate 
that  it  was  so  purchased. 

Whether  in  pursuance  of  the  act  of  Congress  of  the  29th 
May,  1830,  the  defendants  acquired  a  previous  right  of  pur- 
chase of  the  land  in  question,  we  have  no  means  of  determin- 
ing, except  so  far  as  the  certificate  of  the  register  of  the  land 
office  may  lead  to  such  conclusion.  But  on  the  other  hand, 
the  certificate  of  the  first  purchase  in  August,  1830,  by 
Bruner,  is  equally  as  conclusive  that  the  government  would 
not  have  sold  land  to  which  the  defendants  had  a  pre-emption 
right  of  purchase.  The  certificate,  however,  being  placed  on 
the  same  ground  as  an  actual  patent  for  the  purpose  of  evi- 
dence in  this  action,  we  are  bound  to  consider  the  first  as 
conclusive  until  vacated.  Whether  the  same  solemnities  and 
forms  of  proceeding  are  to  be  observed  to  vacate  it  as  in 
the  case  of  a  patent,  is  a  question  we  are  not  now  called  on 
to  determine.  That  it  could  not  be  contradicted  by  parol, 

154 


DECEMBER  TERM,  1834.  163 

Berry  v.  Wilkinson  et  al. 

is,  however,  certain.  It  would  require,  we  should  suppose, 
some  legal  proceedings  to  be  had  before  it  could  be  va- 
cated. Whether  there  might  be  sufficient  cause  to  do  that, 
is  also  a  matter  not  before  the  Court  for  its  decision. 
We  can  know  nothing  of  the  merits  of  such  a  matter  at  this 
time. 

The  third  point  is  easily  settled.  The  principles  here  laid 
down  as  to  the  character  and  effect  of  the  first  certificate,  and 
the  rights  of  the  party  under  it,  determine  the  refusal  of  the 
Circuit  Court  to  have  been  erroneous  in  refusing  the  instruc- 
tion asked.  The  judgment  of  the  Circuit  Court  is  reversed, 
and  the  cause  remanded,  with  instructions  to  the  Circuit  Court 
to  award  a  venire  de  novo,  and  for  further  proceedings  not  in- 
consistent with  this  opinion. 

Judgment  reversed. 


*WILLIAM   L.    BERKY,  plaintiff  in    error,   v.     [164*] 
JOHN  P.  WILKINSON  and  ELIHU  WOLCOTT, 
defendants  in  error. 

Error  to  Morgan. 

CHANGE  OF  VENUE — NOTICE. — Seasonable  notice  must  be  given  to  the 
adverse  party,  of  a  motion  for  a  change  of  venue. 

The  length  of  time  necessary  to  constitute  reasonable  notice,  will  in  some 
degree  depend  upon  the  peculiar  circumstances  of  each  particular  case,  and 
must  necessarily  be  left  to  the  legal  discretion  of  the  judge  or  court  to  which 
the  application  is  made. 

THIS  writ  of  error  was  brought  to  reverse  a  decision  of  the 
Hon.  Samuel  D.  Lockwood,  made  at  the  October  term,  1834, 
of  the  Morgan  Circuit  Court. 

M.  McCoNNELL,  for  the  plaintiff  in  error. 
WM.  THOMAS,  for  the  defendants  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 
On  the  third  day  of  the  last  October  term  of  the  Morgan 
Circuit  Court,  the  plaintiff  in  error  gave  notice  to  the  plaintiffe 
below,  the  defendants  in  error,  that  he  would  apply  to  the 
Court  for  a  change  of  venue  in  this  cause,  and  several  days 
afterward  he  made  the  application,  founded  upon  an  affidavit 

See  ante  117;  11  111.  122;  21  111.  639;  22  111.  636;  29  111.  74. 

155 


164  VANDALIA. 


Swafford  v.  Dovenor. 


getting  forth  that  the  plaintiffs  had  an  undue  influence  over  the 
minds  of  the  inhabitants  of  Morgan  county,  and  that  the  in- 
habitants of  said  county  were  prejudiced  against  him,  so  that 
lie  did  not  expect  a  fair  trial  in  that  county.  The  Court  over- 
ruled the  application  for  a  change  of  venue.  To  which  opin- 
ion the  plaintiff  in  error  excepts,  and  assigns  the  refusal  of  the 
Court  to  grant  his  motion  as  the  ground  for  the  reversal  of 
this  case. 

The  statute  that  authorizes  a  change  of  venue  for  causes 
therein  enumerated,  requires  that  reasonable  notice  of  an  ap- 
plication to  the  judge  or  court  for  such  purpose,  shall  be  given 
to  the  adverse  party,  or  his  attorney.  The  length  of  time 
necessary  to  constitute  reasonable  notice,  will  in  some  degree 
depend  upon  the  peculiar  circumstances  of  each  particular  case, 
and  must  necessarily  be  left  to  the  legal  discretion  of  the  judge 
or  court  to  which  the  application  is  made.  In  this  case,  the 
Court  in  the  exercise  of  that  discretion,  decided  the  notice  to 
be  insufficient ;  and  we  are  not  satisfied  that  the  decision  is 
not  warranted  by  the  circumstances  of  the  case.  For  aught 
that  appears  in  the  petition,  the  existence  of  the  prejudice  of 
which  the  defendant  below  complains,  may  have  been  known 
to  him  for  months  before  the  term.  If  such  was  the  fact,  and 
it  may  be  inferred  from  the  contrary  not  being  averred,  the 
Court  might  very  properly  say  that  notice  during  the  term 
of  the  Court,  after  the  plaintiffs  had  incurred  the 
[*165]  ^expense  of  a  preparation  for  trial,  was  not  such  rea- 
sonable notice  as  the  statute  contemplated. 

The  judgment  of  the  Court  below  is  affirmed  with  costs. 

Judgment  affirmed. 


SAMUEL  SWAFFORD,  appellant,  v.  GEORGE  DOVENOR, 

appellee. 

Appeal  from  Franklin. 

BILL  OF  EXCEPTIONS. — A  bill  of  exceptions  can  not  be  taken  unless  the  ex- 
ceptions be  made  on  the  trial,  and  before  the  jury  is  discharged  ;  and  it 
lies  for  receiving  improper  or  rejecting  proper  testimony,  or  misdirecting  a 
jury  on  a  point  of  law. 

The  matter  or  decision  excepted  to,  must  have  arisen  during  the  prog- 
ress  of  the  cause,  and  before  final  judgment. 

A  bill  of  exceptions  will  not  lie  to  the  final  judgment  of  a  court,  where 
the  whole  case  is  submitted  to  the  court  for  decision,  and  a  jury  dispensed 
with. 

1  Scam.  169.  253,  295.  331.  See  2  Starr  &  C.  111.  Stat.  1808,  Ch.  110, 
H  42,  notes,  1826,  Ch.  110,  U  61,  notes. 

156 


DECEMBER  TEEM,  1834.  165 

Swafford  v.  Dovenor. 

THIS  cause  was  tried  before  the  Hon.  Thomas  C.  Browne,  at 
the  April  term,  1834,  of  the  Franklin  Circuit  Court. 

WALTER  B.  SCATES,  for  the  appellant. 
BAKEE,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This. was  an  action  of  debt  upon  a  note,  instituted  "before  a 
justice  of  the  peace,  in  fhich  the  appellee  recovered  judg- 
ment for  $22.50.  By  appeal  it  was  taken  into  the  Circuit 
Court,  and  there  tried  by  the  Court  without  the  intervention 
of  a  jury,  and  the  judgment  of  the  justice  of  the  peace  af- 
firmed. The  cause  is  brought  by  appeal  to  this  Court.  A 
bill  of  exceptions  was  taken  to  the  judgment  of  the  Circuit 
Court,  on  the  evidence  adduced  before  that  Court,  and  this 
Court  is  now  called  on  to  say  whether,  on  that  evidence,  the 
Circuit  Court  ought  to  have  given  judgment  for  the  plaintiff 
in  the  Court  below. 

It  is  conceived  that  an  important  question  of  practice  is 
now  presented,  involving  the  refusal  or  sanction  of  the  Court 
to  the  mode  and  time  of  taking  the  bill  of  exceptions  in  the 
cause,  as  also  the  character  and  matter  therein  contained,  and 
by  which  the  future  practice  in  relation  to  appeals  from  the 
decisions  of  justices  of  the  peace,  Te-tried  in  the  Circuit  Court, 
is  to  be  settled.  Whatever  may  have  been  the  practice  here- 
tofore, in  reference  to  cases  of  this  character,  by  presumed 
assent  of  the  parties,  because  the  point  has  not  been  hereto- 
fore raised,  it  furnishes  no  reason  or  argument  if  it  be  intrinsic- 
ally wrong  and  improper  in  itself,  for  its  further  con- 
tinuance. The  cases  heretofore  decided  in  this  *Court,  [*166] 
referred  to  in  support  of  the  practice,  and  which  it  is 
supposed  sanction  the  form  of  the  proceedings,  are  very  far, 
it  is  conceived,  from  so  doing.  The  strongest  and  most  relied 
on,  is  the  case  of  Johnson  v.  Achles^  decided  in  June  term, 
1825  (Breese,  59).  By  an  examination  of  that  case,  it  will  be 
perceived,  that  the  only  point  there  decided  was,  that  a  bill 
of  exceptions  might  be  signed  at  the  term  to  which  the  cause 
had  been  continued,  after  the  hearing  and  trial,  and  when 
judgment  was  given.  As  no  judgment  was  given  at  the  term 
at  which  the  cause  was  tried,  the  Court  there  say,  that  the 
party  had  no  knowledge  whether  a  bill  of  exceptions  would 
be  required  to  be  signed,  and  that  they  had  no  opportunity  of 
taking  it  sooner.  It  is  also  said,  that  the  trial  of  appeals  is  an 
anomaly  in  the  law,  and  the  rules  of  taking  bills  of  exceptions 
in  ordinary  trials  by  jury,  can  not  apply.  It  could  never  have 

157 


166  VANDALIA. 


Swafford  v.  Dovenor. 


bsen  the  intention  of  the  Court  in  that  case,  to  say,  that  mat- 
ter to  which  a  bilj  of  exceptions  could  not  lie,  according  to  the 
well  settled  principles  of  law,  might  be  excepted  to  because 
the  trial  of  appeals  was  an  anomaly.  It  must  have  been  its 
intention  to  confine  it  to  the  time  and  manner  of  taking  the 
bill  of  exceptions,  and  not  to  the  matter  contained  in  the  bill. 
The  question  was  not  then  presented,  as  it  now  is,  whether  a  bill 
of  exceptions  will  lie  to  the  judgment  of  the  Court  on  the 
evidence.  There  is  nothing  in  the  case  decided,  which 
touches  on  the  present  point,  and  we  can  not  perceive  that 
the  present  question  can  touch  that  case,  or  the  decision  now 
made  in  any  way  conflict  therewith.  What  then  is  the  case 
now  presented,  and  by  what  principles  and  rules  should  it  be 
governed?  To  understand  those  principles  and  rules,  we 
must  inquire  in  what  cases  a  bill  of  exceptions  lies.  "  A  bill 
of  exceptions  can  not  be  taken  unless  the  exception  be  made 
on  the  trial,  and  before  the  jury  is  discharged  ;  and  it  lies  for 
receiving  improper,  or  rejecting  proper  testimony,  or  misdi- 
recting a  jury  on  a  point  of  law.  This  is  the  rule  laid  down 
by  the  Court  in  the  case  of  Clemson  v.  Kruper  (Breese,  162). 
In  the  case  before  us,  there  was  no  exception  for  receiving 
improper  testimony,  or  rejecting  proper  testimony,  and  as 
there  was  no  jury,  of  course  there  could  be  no  misdirection  of 
them.  Tlie  party  did  not  demur  to  the  evidence,  and  ask  the 
judgment  of  the  Court  whether  in  law  it  was  sufficient  to  au- 
thorize a  recovery  ;  nor  can  it  be  assimilated  to  such  a  pro- 
ceeding, because  the  exception  is  taken  after  the  final  judg- 
ment of  the  Court.  The  exception  goes  to  the  judgment  of 
the  Court  on  the  evidence  in  the  cause  and  is  taken  after  its 
i.'nal  judgment.  Can  it  be  that  an  exception  will  lie  in  such 
a  case?  The  rule  is  universal  that  an  exception  will  only  lie 
in  the  cases  named,  and  that  the  matter  or  decision  excepted 
to  must  have  arisen  during  the  progress  of  the  cause, 
[*167]  and  before  final  judgment.  As  well  *might  a  mo- 
tion be  sustained  to  arrest  a 'judgment  after  its  final 
rendition.  Although  it  is  true  that  the  Court  act  in  the  quasi 
character  of  a  jury,  yet  as  its  whole  decision  on  the  facts,  and 
the  judgment  of  the  law  arising  on  those  facts,  is  given  at 
one  and  the  same  time,  it  seems  wholly  irregular  to  admit  that 
because  it  is  so  a  bill  of  exceptions  ought  to  lie.  The  argu- 
ment of  inconvenience,  which  it  is  said  will  arise  from  an  ad- 
herence to  the  rules  regulating  the  taking  of  bills  of  excep- 
tions in  such  cases,  is  not  really  founded  in  justice,  because 
the  party  has  only  to  require  a  jury  trial  and  all  difficulty  van- 
ishes. If  by  his  own  act  and  consent  he  chooses  to  submit 
the  decision  on  the  facts  and  the  law  to  the  court,  it  is  an  in. 

158 


DECEMBEE  TEEM,  1834.  167 

Sands  t> .  Delap. 

convenience  of  his  own  selection.  During  the  trial  he  has  a 
right  to  object  to  the  admission  of  improper  evidence,  and  to 
insist  on  the  admission  of  proper  evidence,  or  of  moving  for  a 
nonsuit  for  want  of  evidence;  and  if  the  Court  err  in  such 
case,  he  may  except  to  the  opinion  of  the  Court  and  have  the 
error  corrected,  if  there  be  one.  It  is  of  infinite  importance 
that  innovations  on  the  rules  of  proceedings  should  not  be 
sanctioned,  and  that  those  which  are  found  after  long  use  and 
practice  to  be  best  adapted  to  the  correct  determination  of 
causes,  should  be  adhered  to.  For  these  causes  we  are  of 
opinion  that  the  judge  might  have  refused  properly  to  have 
signed  the  bill;  but  because  he  has  not  done  so,  it  does  not 
necessarily  make  the  matter  excepted  to  proper,  nor  legalize 
the  manner  of  doing  it. 

Suppose,  however,  the  Court  should  consider  the  bill  of  ex- 
ceptions regularly  taken,  and  should  also  be  of  opinion  that 
the  judgment  of  the  Court  should  be  reversed;  then  it  would 
have  also  to  order  a  new  trial,  and  make 'thereby  this  mode  of 
proceeding  virtually  an  exception  for  not  granting  a  new  trial. 

On  the  evidence  contained  in  the  bill  of  exceptions,  there 
can  be  no  doubt  that  the  judgment  of  the  Court  was  war- 
ranted. On  the  question  of  the  inadmissibility  of  bills  of  ex- 
ceptions in  cases  like  the  present,  as  well  as  on  the  merits  of 
the  case,  the  judgment  must  be  affirmed  with  costs. 

Judgment  affirmed. 


*JRoBEKT  SANDS,  appellant,  v.  THOMAS  DELAP,     [*168] 

appellee. 

Appeal  from  Schuyler. 

JURISDICTION  OF  JUSTICE  OP  THE  PEACE. — A  justice  of  the  peace  has  no 
jurisdiction  of  a  demand  exceeding  one  hundred  dollars  but  reduced  below 
that  sum  by  unfair  or  feigned  credits. 

Nor  has  a  justice  of  the  peace  under  the  statute  of  1827,  jurisdiction  in  any 
case  where  he  would  necessarily  have  to  investigate  an  account  exceeding 
one  hundred  dollars. 

THIS  cause  was  tried  at  the  June  term,  1834,  of  the  Schuy- 
ler Circuit  Court,  before  the  Hon.  Eichard  M.  Young,  and  a 
judgment  was  rendered  for  the  appellee  for  $80.19,  from 
which  an  appeal  was  taken  to  this  Court. 

S.  BREKSE,  for  the  appellant. 

See  Hugunin  v.  Nicholson,  decided  December  term,  1839,  post  575; 
Simpson  v.  Rawlings,  ante,  29. 

159 


168  VANDALIA. 


Sands  v.  Delap. 


T.  FORD,  for  the  appellee : 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

Delap  brought  a  suit  before  a  justice  of  the  peace,  on  an 
account  comprising  various  items  of  labor  performed  on  the 
lands  of  Sands,  which  Delap  had  occupied  without  the  consent 
of  Sands.  The  labor  had  been  rendered  without  the  request 
of  Sands,  and  when  he  resided  in  another  State.  Delap  on  his 
account  made  a  credit  of  $50,  in  the  words  of  the  account,  "by 
way  of  rent  on  said  improved  land."  On  the  trial  before  the 
justice  of  the  peace  Sands  moved  to  dismiss  the  suit,  because 
the  justice  had  not  jurisdiction  thereof,  the  account  being  over 
§100,  and  not  reduced  by  fair  credits.  A  motion  to  nonsuit 
the  plaintiff  in  the  Circuit  Court  was  also  made,  but  overruled. 
It  is  unnecessary  to  consider  any  other  point,  raised  in  the 
cause,  than  the  one  of  jurisdiction. 

The  case  comes  directly  within  the  principles  and  reasons  of 
the  decisions  in  the  cases  of  Clark  v.  Cornelius  (Breese,  21), 
Ellis  v.  Snyder  (Breese,  263),  and  Blue  v.  Wier  and  Van- 
landingham  (Breese,  293).  This  Court  decided  in  the  last 
case,  in  accordance  with  the  decision  in  other  enumerated 
cases,  that  the  statute  of  1827,  giving  jurisdiction  to  the  jus- 
tices of  the  peace  in  civil  cases,  did  not  authorize  a  justice  to 
entertain  jurisdiction  where  the  account  was  open  and  unset- 
tled, and  the  whole  amount  of  the  account  of  either  party  ex- 
ceeded $100.  This  is  precisely  the  case  here;  the  appellee 
claims  $130.19,  and  gives  a  credit  of  $50,  for  rent 
[*169]  supposed  due  *for  lands  which,  from  the  case,  it  must 
be  evident  he  had  never  occupied  with  the  assent  of 
the  appellant. 

The  relation  of  landlord  and  tenant  nowhere  appears  by  the 
evidence  in  the  cause,  but  the  fair  inference  is  that  he  was  an 
intruder  on  the  lands.  But  the  credits,  as  in  the  case  last  re- 
ferred to,  were  made  by  the  party  himself,  when  in  truth  he 
paid  nothing  to  Sands,  for  the  purpose  of  merely  gaining,  as 
he  supposed,  a  jurisdiction  for  the  magistrate.  It  is  evident 
it  was  not  a  lonafide  credit.  There  could  have  been  no  ascer- 
taining of  a  balance  between  the  parties  as  contemplated  by 
the  statute.  To  ascertain  this  balance,  the  justice  had  neces- 
sarily to  investigate  an  account  much  exceeding  $100,  and  con- 
sequently therein  greatly  exceed  his  jurisdiction  by  assuming  it. 

The  judgment  of  the  Court  below  is  reversed  for  want  of 
jurisdiction. 

Judgment  reversed. 

WILSON,  Ch.  J.,  did  not  sit  in  this  case. 

160 


DECEMBEK  TERM,   1834  169 

White  et  al.  v.  Wiseman. 


JOHN  WHITE  and  DAVID  BARNES,  appellants,  v.  WM. 
WISEMAN,  appellee. 

Appeal  from  Hamilton. 

A  bill  of  exceptions  will  not  lie  to  the  final  judgment  of  the  Circuit  Court 
in  a  case  where  the  cause  is  tried  without  a  jury. 

"W.  B.  SCATES,  for  the  appellant. 
"W.  J.  GATEWOOD,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  is  the  case  of  an  appeal  from  a  justice  of  the  peace  to 
the  Circuit  Court,  and  from  the  Circuit  Court  of  Hamilton 
county  to  this  Court.  The  cause  was  tried  in  the  Circuit 
Court  without  a  jury.  The  appellants,  who  were  defendants 
in  the  Circuit  Court,  took  an  exception  to  the  judgment  of  the 
Circuit  Court,  on  the  evidence  in  the  cause,  on  the  day  after 
the  rendition  of  the  final  judgment.  It  will  be  perceived  that 
this  cause  comes  directly  within  the  principles  of  the  decision 
in  the  case  of  Swafford  v.  Dovenor,  decided  at  this  term,  that 
no  bill  of  exceptions  lies  to  the  judgment  of  the  Circuit 
Court. 

The  judgment  is  necessarily  affirmed  with  costs. 

Judgment  affirmed. 

See  Swafford  ».  Dovenor.    Ante  165. 


*JOHN  HUTSON,  appellant,  v.  JOHN  OVEETUEF,    [*170] 

appellee." 

Appeal  from  Franklin. 

PUBLIC  LANDS— IMPROVEMENTS  ON,  PRIOR  TO  PURCHASE— PROMISE  TO 
PAY  FOR. — A  promise  made  by  a  vendee  of  public  lands,  after  the  purchase  of 
the  «ime  of  the  United  Stales,  to  pay  for  improvements  made  upon  the  same 
previous  to  the  purchase,  is  without  consideration  and  vqjd. 

The  statute  of  1831,  in  relation  to  the  sale  of  improvements  upon  public 
lands,  has  no  application  to  a  promise  made  by  a  purchaser  of  a  portion  of 
such  lands  after  such  purchase,  to  pay  for  improvements  made  upon  the  same 
while  it  belonged  to  the  United  States.  It  applies  only  to  contracts  respect- 
ing the  sale  of  improvements  which  at  the  time  the  contract  is  entered 
into  are  on  the  land  owned  by  the  government. 

•CITED:  1  Scam.  473 ;  4  Scam.  535;  2  Gihn.  668;  16  111.  62. 

VOL.  1-11  161 


170  VANDALIA. 


Hutson  v.  Overturf. 


THIS  cause  was  tried  at  the  April  term,  1834,  of  the  Frank- 
lin Circuit  Court,  before  the  Hon.  Thomas  C.  Browne.  A 
judgment  was  rendered  for  the  appellee  for  $40  and  costs,  from 
which  an  appeal  was  taken  to  this  Court. 

W.  B.  SCATES,  for  the  appellant,  cited  Comyn  on  Cont. 
2,  7,  8-13,  14-17,  18,  19  and  note,  24,  59;  Chitty  on  Cont.  2- 
16,  and  authorities  there  cited,  215-232;  2  Blac.  Com.  442- 
445  and  notes  8,  9,  10 ;  3  Bos.  and  Pul.  249,  note,  and 419,  note; 
Carson  v.  Clark,  ante  113 ;  Noy's  Maxims,  24;  2  Kent's  Com. 
463-468;  R  L.  483,  §  5;  U.  S.  Land  Laws  No.  133,  p.  551- 
No.  216,  p.  677,  No.  305,  p.  716 ;  4th  Art.  of  Ordinance  ad, 
mitting  Illinois  into  the  Union  ;  Garth.  252  ;  1  Taunt.  136;  5 
Barn,  and  Aid.  335 ;  Ex  parte  Dyster,  2  Rose  Bkft.  Cas.  351 ; 
1  H.  Black,  65. 

D.  J.  BAKER,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  appeal  from  the  judgment  of  a  justice  of  the 
peace  to  the  Circuit  Court.  In  that  Court  the  judgment  was 
affirmed  in  favor  of  the  plaintiff  below,  Overturf.  From  this 
decision  Hutson  appealed  to  this  Court.  From  the  bill  of  ex- 
ceptions taken  in  the  case  it  appears  Hutson  purchased  from 
the  United  States,  in  May,  1833,  eighty  acres  of  land  upor 
which  Overturf  had  made  an  improvement  before  the  sale  by 
the  United  States  to  Hutson  ;  that  in  September  following, 
Hutson  told  Overturf  he  would  give  him  $40  for  the  im- 
provement he  had  made  upon  the  land.  Respecting  this  part 
of  the  case,  the  evidence  is  inconclusive  and  contradictory ;  but 
it  is  clear  that  the  only  consideration  for  whatever  promise 
Ilutson  made,  was  the  improvement  upon  the  laud  of  which 
lie  at  the  time  was  owner.  This  case  comes  clearly  within  the 
principle  of  the  case  of  Carson  v.  Clark,  decided  by  this  Court 

at  the  last  term.  (Ante  113.)  In  that  case  the  Court 
[*171]  decided  that  a  promise  made  by  a  vendee,  after  *the 

purchase  of  land  from  the  government,  to  pay  for 
improvements  made  upon  the  land  previous  to  the  purchase, 
was  a  promise  without  consideration,  and  therefore  void.  It 
is  contended,  however,  that  the  statute  relative  to  contracts 
for  the  sale  of  improvements  on  public  land,  approved  Febru- 
ary 15,  1831  (R.  L.  420;  Gale's  Stat.  434),  has  changed  the 
principle  of  the  common  law,  and  made  valid  that  class  of  con- 
tracts respecting  improvements  upon  public  land,  which  before 
its  passage  were  void  for  want  of  a  sufficient  consideration.  It 
is  not  necessary,  in  deciding  this  case,  to  inquire  whether  that 
102 


DECEMBER  TERM,  1834.  171 

Hutson  v.  Overturf. 

statute  has  changed  the  principles  of  the  common  law  upon 
this  subject,  or  if  it  has,  to  what  extent.  This  case  is  not  with- 
in its  provisions.  The  statute  declares  all  contracts  and  under- 
takings entered  into  in  good  faith  for  the  sale  or  payment  of 
improvements  made  on  the  land  owned  by  the  government  of 
the  United  States,  to  be  valid  and  binding.  This  provision  ap- 
plies only  to  contracts  respecting  the  sale  of  improvements 
which  at  the  time  the  contract  is  entered  into,  are  on  the  land 
owned  by  the  government.  The  contract  in  this  case,  as  the 
bill  of  exceptions  shows,  was  not  for  an  improvement  thus  sit- 
uated. The  land  upon  which  it  was  made,  did  not  at  the 
time  of  the  contract,  belong  to  the  government,  but  on  the 
contrary  was  owned  by  Hutson,  who  had  previously  purchased 
it  from  the  United  States.  His  promise,  then,  to  Overturf,  to 
pay  for  that  of  which  he  was  already  the  owner,  was  void  at 
common  law,  for  want  of  consideration,  and  is  not  made  obli- 
gatory by  the  statute  relied  upon. 

The  judgment  of  the  Circuit  Court  is  therefore  reversed, 
and  judgment  rendered  for  Hutson,  the  appellant,  for  costs. 

Judgment  reversed. 

163 


DECISIONS 


SUPREME  COURT 


STATE  OF  ILLINOIS, 

DELIVERED 

JUNE  TERM,  1835,  AT  VANDALIA., 

Note.    At  this  term  Justices  LOCKWOOD  and  BROWNE  were  not  present. 

DANIEL  BLEVINGS,  plaintiff  in  error,  v.  The  PEOPLE 
OF  THE  STATE  OF  ILLINOIS,  defendants  in  .error. 

Error  to  Jefferson. 

INDICTMENT  FOR  BURGLARY — PLEA  OF  GUILTY — SENTENCE. — Where  the 
defendant  pleaded  guilty  to  an  indictment  for  burglary  and  the  Court 
sentenced  him  to  be  imprisoned  in  the  penitentiary  for  eighteen  months  : 
Held  that  the  proceedings  were  regular  . 

The  words  "  in  all  cases"  in  §  158  of  the  Criminal  Code,  apply  only  to 
aH  cases  tried  by  a  jury. 

Where  a  prisoner  pleads  guilty  on  an  indictment  for  burglary,  the  Court 
should  fix  the  time  for  which  he  is  to  be  confined  in  the  penitentiary. 

"W.  B.  SCATES,  for  the  plaintiff  in  error. 

J.  B.  THOMAS,  Jr.,  Attorney  General,  for  the  defendants 
in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  indictment  for  burglary  found  at  the  Septem- 
ber term  of  the  Jefferson  Circuit  Court,  1834. 

At  the  March  term,  1835,  the  plaintiff  in  error  was  ar- 
raigned on  the  indictment,  and  thereupon  pleaded  guilty. 
The  Court  sentenced  him  to  imprisonment  in  the  peniten- 
tiary for  the  space  of  one  year  and  six  calendar  months ;  six- 

164 


JUNE   TERM,  1835.  172 

Blevings  v.  The  People. 

teen  months  to  hard  labor,  and  the  last  two  months  to  solitary 
confinement.     To  this  judgment  the  plaintiff  excepted. 

*The  only  question  submitted  to  the  Court  for  itsde-  [*173] 
termination  by  the  errors  assigned,  is,  whether,  in  the 
present  case,  the  prisoner  having  pleaded  guilty,  the  Court, 
upon  the  recording  of  such  plea  of  confession  of  guilt,  shall  pro- 
nounce the  judgment  of  the  law,  and  sentence  the  party  to  im- 
prisonment in  the  penitentiary,  or  whether  our  Criminal  Code 
has  omitted  to  provide  for  the  punishment  of  offenders  in  such 
cases,  and  left  the  Court  entirely  powerless,  because  the  con- 
viction of  the  party  is  rendered  on  his  confession,  and  not  on 
the  verdict  of  a  jury,  who  may  have  found  his  guilt. 

It  is  admitted  that  at  common  law,  in  all  criminal  cases,  juries 
were  impaneled  to  find  the  facts  only,  except  perhaps  in 
some  cases  of  special  jurisdiction ;  that  they  never  were  in- 
vested with  the  power  of  determining  the  character  or  ex- 
tent of  the  punishment  to  be  awarded  for  the  perpetration  of 
the  crime.  But  in  considering  the  present  question,  we  are  to 
be  governed  entirely  by  the  provisions  and  enactments  of  our 
code  of  criminal  jurisprudence  ;  and  if  it  shall  satisfactorily 
appear  from  it  that  although  in  cases  where  the  guilt  of  the 
party  in  a  criminal  trial  has  been  ascertained  and  pronounced 
by  the  verdict  of  a  jury,  that  jury  are,  where  the  punishment 
shall  be  by  confinement  in  the  penitentiary,  to  determine  in  their' 
verdict  for  what  term  the  offender  shall  be  confined  ;>that  the 
Court  have,  in  all  cases  where  the  party  indicted  shall  plead 
guilty,  the  express  power  conferred  on  it  to  proceed  to  render 
judgment  and  execution  therein,  as  if  the  party  had  been  found 
guilty  by  a  jury ;  then  it  will  not  be  contended  that  the  sen- 
tence and  execution  thereon  have  been  erroneous.  Now,  al- 
though it  is  certain  that  in  the  158th  section  (R.  L.  208  ;  Gale's 
Stat.  229)  of  the  Criminal  Code  it  is  expressly  provided  that  in 
all  cases  where  the  punishment  shall  be  by  confinement  in  the 
penitentiary,  "the  jury  shall  say  in  their  verdict  for  what  term 
the  offender  shall  be  confined,"'  still  it  is  as  clearly  provided  in 
the  173d  section  (R.  L.  212 ;  Gale's  Stat.  232)  of  the  same  act, 
that  in  all  cases  where  the  party  indicted  shall  plead  guilty, 
such  plea  shall  be  received  and  recorded,  and  the  Court  shall 
proceed  to  render  judgment  and  execution  thereon,  as  if  he  or 
they  had  been  found  guilty  by  a  jury.  These  two  sections 
taken  in  connection  with  each  other,  do  not  stand  in  such  a 
position  of  conflict  as  to  destroy  the  power  given  to  pronounce 
the  judgment  on  the  confession  of  guilt,  and  award  the  pun- 
ishment provided  by  law.  The  words  "  in  all  cases,"  in  the 
158th  section,  must  be  intended  to  apply  to  all  cases  tried  by  a 
jury,  for,  if  any  other  construction  were  given,  it  would  lead 

165 


173  VAKDALIA. 


Wilson  v.  Greathouse. 


to  the  absurd  consequence  of  admitting  that  on  a  confession  of 
guilt  no  punishment  could  be  awarded,  notwithstanding  the  ex- 
press provision  giving  the  power  under  the  173d  section. 

The  intention  of  the  legislature  is  apparent;  and 
[*174]  *even  by  a  strict  construction,  the  two  sections  may 

be  fairly  reconciled.  There  can  be  no  doubt  that  the 
judgment  was  proper  and  warranted  by  law.  The  mode  in 
which  this  case  is  before  the  Court,  is  not  objected  to  by  the 
counsel  for  the  People,  and  the  Court  do  not  mean  to  say  that 
it  is  regular,  but  they  suggest  whether  the  party  ought  not  to 
have  moved  in  arrest  of  judgment  in  the  Court  below.  This 
remark  is  made  to  preclude  the  idea  of  sanctioning  the  mode 
now  adopted.  Let  the  writ  of  error  be  dismissed. 

Judgment  affirmed. 


THOMAS   R.  WILSON,   plaintiff  in   error,   v.  JOHN  S. 
GREATHOUSE,  defendant  in  error. 

Error  to  Marion. 

RETURN  OP  PROCESS. — The  return  of  a  constable  or  other  officer  should 
state  the  time  when  service  of  process  was  made. 

The  following  return  upon  a  summons,  "Executed  on  the  within  defend" 
ant  by  his  reading  the  within.  Joseph  Flinn,  Const.  M.  C.,"  is  insufficient 
and  void. 

PAROL  EVIDENCE. — Parol  proof  can  not  be  received  to  show  when  proc- 
ess was  served,  when  the  officer  who  made  the  service  is  dead. 

THIS  cause  was  tried  at  the  March  term,  1835,  of  the  Madi- 
son Circuit  Court,  before  the  Hon.  Thomas  Ford. 

SETH  T.  SAWYER,  for  the  plaintiff  in  error. 
WM.  H.  BKOWN,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  prosecuted  originally  before  a  justice  of 
the  peace,  and  removed  by  appeal  into  the  Circuit  Court. 

The  defendant  in  error  moved  in  the  Circuit  Court  to  reverse 
the  judgment  of  the  justice  of  the  peace,  which  had  been  en- 
tered against  the  defendant,  he  not  having  appeared  before 
the  justice,  on  the  return  day  of  the  process  of  summons,  be- 

CITED:  1  Scam.  177,239;  3  Scam.  576;  27  111.  363;  57  111.  89,  231;  8 
Bradw.  461.  Distinguished,  57  111.  82. 

1G6 


JUNE  TEEM,  1835.  174 

Wilson  v.   Greathouse. 

cause  of  the  insufficient  return  of  the  constable  as  to  the  serv* 
ice  of  the  summons,  which  return  as  indorsed  on  the  process 
was,  "  Executed  on  the  within  defendant  by  his  reading  the 
within.  Joseph  Flinn,  Const.  M.  C."  At  the  same  time  the 
plaintiff  in  error  moved  the  Circuit  Court  for  leave  to  show, 
by  parol,  that  the  constable  who  served  the  process  was  dead, 
and  the  service  of  the  process  was  within  the  time  re  quired  by 
law ;  and  also  that  the  defendant  had  admitted  the  service  to 
have  been  in  time.  The  Circuit  Court  refused  the  leaveasked 
by  the  defendant,  and  reversed  the  judgment  of  the 
justice  of  the  peace.  To  reverse  the  decision  of  *the  [*1T5] 
Circuit  Court  on  this  state  of  the  case,  this  writ  of 
error  is  prosecuted. 

To  determine  the  correctness  of  the  judgment  of  the  Circuit 
Court  it  is  necessary  to  recur  to  the  act  creating  the  jurisdic- 
tion of  justices  of  the  peace,  and  prescribing  the  mode  of 
emanation  and  defining  the  time  within  which  the  service  of 
process  of  summons  shall  be  made.  The  3d  section  (K.  L. 
387 ;  Gale's  Stat.  403,)  of  that  act  declares  that  the  summons 
shall  be  served  at  least  three  days  before  the  time  of  trial 
mentioned  therein,  by  reading  the  same  to  the  defendant.  It 
is  apparent  in  the  present  case  that  it  would  be  utterly  impos- 
sible, from  the  face  of  the  return,  to  determine  whether  the 
process  had  been  served  within  the  time  prescribed  by  the  law 
or  not,  because  no  day  or  date  is  given  by  the  return  of  the 
officer.  The  return  is  not  even  dated,  and  by  which  it  might, 
if  made  three  days  before  the  return  day  of  the  process,  have 
been  perhaps  inferred  that  the  service  had  been  made  in  time. 
For  aught  that  can  be  presumed  it  might  have  been  made  on 
the  return  day  of  the  process.  The  return  should  have  shown 
distinctly  the  time  of  service  so  that  the  justice  could  have  de- 
termined whether  the  service  was  regular  and  within  the  time 
prescribed  by  law.  It  is  proper  that  ministerial  officers,  like 
sheriffs,  constables  and  others  charged  with  service  of  process, 
should  state  clearly  the  time  and  manner  of  serving  such  proc- 
ess, and  no  plea  of  inconvenience  resulting  to  others  from 
their  neglect  should  dispense  with  its  performance.  It  is  es- 
sential to  the  exercise  of  all  jurisdictions  rendering  judgments 
or  decrees  affecting  the  persons  or  property  of  individuals, 
where  the  proceeding  is  by  summons  directed  to  the  defend- 
ants, that  they  should  have  indisputable  evidence  before  them 
that  the  party  to  be  affected  by  their  judgments  or  decrees  is 
regularly  before  them,  otherwise  their  proceedings  are  coram 
non  judice;  consequently  irregular  and  void.  This  appearance 
must  be  either  actual  or  constructive.  Now  where  there  is 
no  evidence  that  the  process  by  which  the  party  is  to  be  called 

167 


175  VANDALIA. 


.  Wilson  v.  Greathouse. 


before  the  Court  has  been  duly  served  according  to  the  law 
prescribing  the  time  and  manner  of  such  service,  can  it  be  con- 
tended that  a  judgment  may  be  rendered  against  such  party  by 
default  and  execution  issue  against  him  ? 

The  plaintiff,  in  a  case  where  the  defendant  does  not  appear, 
proceeds  at  his  peril ;  he  is  bound  to  see  that  all  antecedent 
proceedings  are  regular,  and  if  they  are  not  he  necessarily 
consents  to  meet  the  consequences  of  such  irregularities.  It  is 
manifest  in  the  present  case  that  there  was  no  evidence  of  the 
time  of  the  service  of  the  process  of  summons  on  the  defend- 
ant, and  as  he  did  not  appear  before  the  justice  he  has  waived 

nothing  on  the  score  of  irregularity. 

[*176]  *The  cross-motion  for  leave  to  show,  by  parol,  the 
time  of  service,  was  properly  refused.  Such  a  course 
could  never  be  justified  on  principle,  nor  is  there,  it  is  believed, 
a  single  precedent  to  warrant  such  a  course.  The  return  of 
the  officer  could  have  been  amended  only  by  himself  ;  if  his 
death  intervened  to  prevent  it,  still  that  is  no  cause  for  a  de- 
parture from  the  rule.  It  is  a  false  supposition  to  say  that  the 
act  of  God  would  work  an  injury  to  the  present  plaintiff  if 
parol  evidence  be  refused,  because  it  was  the  plaintiff's  own 
negligence  in  not  taking  care,  in  the  first  instance,  before  the 
justice  to  have  had  the  return  of  the  constable  amended  at  the 
trial.  His  omission  to  do  so  can  not  now  be  a  reason  for 
adopting  a  rule  that  would  lead  to  the  most  interminable  per- 
plexities and  mischievous  consequences.  But  suppose  the  evi- 
dence received,  still  no  officer,  it  is  admitted,  is  in  being  to 
make  the  amendment.  By  whom,  then,  could  it  be  done? 
This,  it  is  supposed,  sufficiently  illustrates  the  entire  irregular- 
ity and  inutility  of  the  cross-motion. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

168 


JUNE  TEEM,  1835.  176 

Clexnson  et  al.  v  Hamm. 


ELI  B.  CLEMSON  and  CHARLES   W.  HUNTER,  plaintiffs 
in  error,  v.  MOSES  HAMM,  defendant  in  error. 

Error  to  Madison. 

BETTTKN  OP  PROCESS. — The  return  of  a  sheriff  should  state  the  time  when 
the  process  was  executed. 

The  return  of  a  sheriff  upon  a  summons  in  these  words,  "  Executed  on 
Hunter — Clemson  not  found.  N.  Buckmaster,  Sheriff,  M.  C.,"  is  insuffi- 
cient. • 

J.  B.  THOMAS  and  D.  PRICKETT,  for  the  plaintiffs  in  error. 

J.  SEMPLE,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

In  this  case  the  judgment  below  was  against  the  defendants, 
Eli  B.  Clemson  and  Charles  W.  Hunter,  by  default.  The 
error  assigned  for  the  reversal  of  this  judgment  is  the  want  of 
sufficient  notice  to  the  defendants  below.  The  return  of  the 
sheriff  on  the  summons  is  in  these  words :  "  Executed  on 
Hunter — Clemson  not  found.  N.  Buckmaster,  Sheriff,  M.  C." 

The  statute  requires  the  sheriff  to  serve  all  process  of  sum- 
mons or  capias,  when  it  shall  be  practicable,  ten  days  before 
the  return  day  thereof,  and  to  make  return  of  such  process  to 
the  clerk  who  issued  the  same,  by  or  on  the  return  day,  with 
an  indorsement  of  his  service,  the  time  of  serving  it  and  the 
amount  of  his  fees.  The  sheriff's  return  in  this  case 
is  certainly  not  in  accordance  *with  the  requisitions  of  [*177] 
the  statute.  The  time  when  the  summons  was  served 
he  has  omitted  to  state.  This  is  a  material  fact,  for  if  it  was 
not  served  ten  days  before  the  commencement  of  the  term 
the  defendant  could  not  be  compelled  to  plead  before  the  next 
succeeding  term.  The  Court  could  not  know  from  the  in- 
dorsement of  the  summons  whether  one  or  twenty  days  had 
intervened  between  the  service  and  the  return  thereof;  it 
erred,  therefore,  in  rendering  judgment  against  Hunter.  The 
case  of  Wilson  v.  Crreatfwuse,  decided  at  the  present  term,  is 
in  principle  analogous  to  this  case. 

The  cause  is  reversed  with  costs. 

Judgment  reversed. 

CITED  :    1  Scam.  239  ;  3  Scam.  153  ;  27  111.  363.    See  ante  174. 

169 


DECISIONS 


OF  THB 


SUPREME  COURT 

OF  THE 

STATE  OF  ILLINOIS. 


DELIVERED 


DECEMBER  TERM,  1835,  AT  VANDAL1A., 

WILLIAM  G.  BLAIR,  appellant,  v.  CALEB  WORLEY,  ap- 
pellee. 

Appeal  from  Vermilion. 

PUKCHASE  OE    PUBLIC  LANDS — PRIOR  IMPROVEMENTS. — A  purchaser  of 

land  from  the  government  of  the  United  States  or  of  this  State,  acquires  the 
right  to  all  the  improvements  made  upon  it  anterior  to  his  purchase.  The 
act  of  February  23,  1819,  giving  the  right  to  remove  fences  made  by  mis- 
take upon  the  lands  of  other  persons,  applies  only  to  natural  persons;  it  has 
no  relation  to  a  case  where  a  fence  is  erected  by  mistake  upon  the  lands  of 
the  United  States  or  of  this  State. 

CONSTRUCTION  OP  STATUTES. — In  the  enactments  of  legislative  bodies, 
where  persons  are  spoken  pf ,  no  other  than  natural  persons  will  be  intended, 
unless  it  be  absolutely  necessary  to  give  effect  to  some  powers  already  con- 
ferred on  artificial  persons,  and  which  it  is  necessary  should  be  exercised  to 
carry  into  effect  the  objects  contemplated  in  their  grant  or  charter. 

THIS  cause  was  tried  at  the  October  term,  1835,  of  the  Ver- 
milion Circuit  Court,  before  the  Hon.  Alexander  F.  Grant  and 
a  jury.  A  verdict  was  found  for  the  plaintiff  below,  the  ap- 
pellee, for  $25,  and  judgment  was  rendered  upon  this  verdict. 
The  defendant  appealed  to  this  Court. 

S.  McRoHERTs,  for  the  appellant. 

J.  PEARSON,  for  the  appellee. 
CITED:    2  Gihn.  668;  16  111.  62. 

170 


DECEMBER  TERM,  1835.  178 

Blair  t>.  Worley. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  trespass.  The  declaration  con  tains  two 
counts,  one  for  the  assaulting  and  beating  the  plaintiff,  and  the 
other  for  entering  his  close  and  carrying  away  a  quantity 
of  the  *rails  on  said  close.  The  defendant  pleaded  not  [*179] 
guilty  and  gave  notice  of  special  matter  in  justification. 
By  the  bill  of  exceptions  taken  on  the  trial  of  the  cause,  it 
appears  that  the  plaintiff  in  the  Court  below  erected  a  fence 
upon  the  S.  E.  qr.  of  the  K  E.  qr.  of  Section  16,  in  T.  20,  K 
of  Range  11,  West,  in  the  fall  of  1834,  and  while  the  land  was 
public  land.  That  on  the  third  day  of  March,  1835,  Blair,  the 
defendant  in  the  Court  below,  duly  purchased  from  the  school 
commissioner  at  private  sale  the  same  lands,  and  that  he  after- 
ward took  and  removed  the  fence  and  rails  erected  on  the 
land  after  he  made  such  purchase,  which  were  still  there. 
Upon  this  proof  the  defendant's  counsel  prayed  the  Court  to 
instruct  the  jury  that  Blair,  by  virtue  of  the  purchase  of  the 
land,  became  the  owner  of  the  fence  and  rails,  and  that  so 
far  as  regards  the  taking  of  said  fence  and  rails  they  must  find 
the  defendant  justified,  and  accordingly  find  a  verdict  for 
him.  The  Court  below  refused  the  instruction  asked,  and  in- 
structed the  jury,  that  if  they  believed  that  the  plaintiff  had 
erected  the  fence  on  the  tract  described,  through  mistake,  be- 
lieving it  to  be  on  the  adjoining  tract  of  which  he  was  the 
proprietor,  the  act  of  the  legislature  entitled  "An  act  to  enable 
persons  to  remove  fences  made  by  mistake  on  the  lands  of  other 
person-s,"  (R.  L.  419;  Gale's  Stat.  433,)  approved  February  23, 
1819,  gave  the  plaintiff  Worley  the  right  to  said  rails,  and  to  re- 
move the  same  in  the  manner  prescribed  in  said  act.  The  defend- 
ant excepted  to  these  instructions,  and  he  now  assigns  in  this 
Court  for  error,  the  refusal  of  the  Court  below  to  give  the  in- 
structions prayed  for,  and  the  instructions  as  given. 

In  determining  the  tenableness  of  the  positions  assumed  by 
the  counsel  for  the  plaintiff  in  error,  in  the  causes  of  error  as- 
signed, it  will  perhaps  be  only  necessary  to  recur  to  the  de- 
cision made  in  this  Court  at  its  December  term,  1833,  in  the 
case  of  Carson  v.  Clark  (ante  113),  and  in  which  the  doctrine 
is  recognized,  that  the  purchaser  of  land  from  the  government 
of  the  United  States  acquires  the  right  to  all  the  improve- 
ments made  upon  it  anterior  to  his  purchase.  Under  that  de- 
cision, it  is  manifest  that  the  instructions  prayed  for  by  de- 
fendant'? counsel  in  the  Court  below  ought  to  have  been  given; 
unless  indeed  the  act  referred  to  in  the  instructions  given, 
changed  the  rights  of  the  ]  arties.  After  an  attentive  exami- 
nation of  that  act,  it  is  not  perceived  that  the  makers  of  it 
could  have  had  in  contemplation  to  establish  a  rule  of  action  in 


171 


179  YANDALIA. 


Blair  ».  Worley. 


relation  to  the  erection  of  fences  by  mistake  between  any  other 
than  natural  persons;  certainly  not  between  governments  and 
individuals.  It  is  not  possible  to  suppose  that  they  contem- 
plated that  the  government  of  the  United  States,  or  of  this 
State,  would  become  the  cultivators  of  the  soil,  and 
[*1SO]  erect  fences  *over  our  vast  prairies,  and  enter  into  all  \ 

the  various  pursuits  of  agriculture. 

Yet  it  seems  to  me  this  must  be  the  necessary  inference,  if 
the  construction  contended  for  by  the  appellant  s  counsel,  and 
given  in  the  instructions  of  the  Circuit  Court,  be  sanctioned. 
It  is  too  manifest  to  doubt,  as  well  from  the  preamble  of  the 
act  as  from  its  context,  that  it  merely  contemplated  a  remedial 
action  between  individuals,  and  intended  to  change  the  rights 
of  parties  as  they  stood  at  common  law.  This  is  both  its  let- 
ter and  spirit,  and  is  most  clearly  evinced  by  the  forms  of  pro- 
ceeding to  be  observed  by  the  parties  in  .seeking  the  remedy 
fiven  under  the  law.  Let  it  be  asked  whether  any  law  of  this 
tate  could  be  constitutionally  enacted  which  should  provide  for 
the  occupancy  of  any  portion  of  the  lands  of  the  United  States, 
and  that  individuals  should  place  fences  thereon,  and  that  a  pur- 
chaser from  the  government  of  the  United  States  should  not 
disturb  the  same  for  one  year  thereafter?  Surely  not,  and  yt  t 
this  would,  in  effect,  be  the  operation  of  the  second  section  of 
this  act,  if  the  instructions  of  the  Circuit  Court  in  this  case 
were  correct. 

Independent  of  this  view  of  the  case,  the  doctrine  laid  down 
in  the  case  of  Betts  v.  Menard  (Breese's  App.  10),  decided  in 
this  Court  in  December  term,  1831,  is  directly  applicable.  It 
is  there  said  "  that  in  the  enactments  of  legislative  bodies, 
where  persons  are  spoken  of,  no  other  than  natural  persons  will 
be  intended,  unless  it  be  absolutely  necessary  to  give  effect  to 
some  powers  already  conferred  on  artificial  persons,  and  which 
it  is  necessary  should  be  exercised,  to  carry  into  effect  the  ob- 
jects contemplated  in  their  grant  or  charter." 

The  legislature  could  never  have  intended  that  the  opera- 
tions of  the  act  referred  to  should  apply  to  artificial  persons, 
at  least  of  a  political  cast.  Whether  that  artificial  body  be 
this  State  or  the  United  States  can  make  no  difference.  The 
land  purchased  of  the  school  commissioner  was  held  by  the 
State  in  trust  for  the  inhabitants  of  the  township  in  which  it 
lay,  and  was,  in  contradistinction  to  private  lands,  as  much  pub- 
lic lands,  as  if  owned  by  the  government  of  the  United  States. 
As  the  instructions  prayed  for  ought  to  have  been  given,  and 
those  actually  given  were  erroneous,  the  judgment  of  the  Cir- 
cuit Court  is  reversed  with  costs.  Judgment  reversed. 

."WILSON,  Ch.  J.,  did  not  sit  in  this  case. 

172 


DECEMBER  TERM,  1835.  181 

Webb  v.  Sturtevant. 


*THOMAS   WEBB,   appellant,  v.   GEORGE  W.     [*181] 
STURTEVANT,  appellee. 

Appeal  from  Cook. 

TRESPASS  QTTARE  CLATJSTJM  FREGIT — POSSESSION. — In  actions  of  trespass 
quare  clausum  freglt,  the  law  is  well  settled,  that  possession  of  the  close  is 
sufficient  to  sustain  the  action  against  any  person  who  shall  enter  upon  that 
possession,  except  the  owner. 

The  possession,  where  that  alone  is  relied  on,  must  be  an  actual  and  not 
a  constructive  possession. 

The  mere  entry  upon  a  tract  of  land  without  any  color  of  title,  and  inclos- 
ing a  small  part  of  it,  does  not,  of  itself,  constitute  an  actual  possession  of 
any  more  land  than  is  inclosed. 

THIS  cause  was  tried  at  the  May  term,  1835,  of  the  Cook 
Circuit  Court,  before  the  Hon.  Sidney  Breese  and  a  jury.  A 
verdict  was  rendered  for  the  plaintiff  below  for  $56.  Judg- 
ment was  rendered  on  this  verdict,  and  an  appeal  taken  to  this 
Court. 

The  bill  of  exceptions  is  as  follows : 

Be  it  remembered  that  on  the  trial  of  this  cause,  at  the  May 
term  of  the  Cook  Circuit  Court,  the  defendant,  by  his  counsel, 
moved  the  Court  to  instruct  the  jury  as  follows : 

1.  That  if   the  jury  shall  believe  from  the  evidence  that 
the  land  on  which  the   supposed   trespasses  were   committed, 
at  the  time  was  the  land  of  the  United  States  or  of   the  State 
of  Illinois,  and  that  the  United  States   and  this  State  were  in 
possession  of  said  lands   at  the  time  of   the   plaintiff's   entry 
thereon,  that  such  entry  of  the  plaintiff  did  not  dispossess  the 
United  States  or  this  State,  only  so  far  as  the  plaintiff's  actual 
close,  and  no  further,  and  in  such  case  the  law  is  for  the   de- 
fendant. 

2.  That  if  the  jury  shall  believe   from  the  evidence  that 
the   plaintiff,    at  the  time   of   the   committing   of  the  sup- 
posed trespasses,  was  not  in  the  actual  and  exclusive  pos- 
session  of   the  land  on  which  the   supposed  trespasses  were 
committed  by  the  defendant,  then  the  law  is  with  the  defend- 
ant. 

3.  That  if  the  jury  shall  believe  from  the  evidence,  that  the 
land  on  which  the  supposed  trespasses  were  committed,  and  at 
the  time  in  the  possession  of  the  United  States  or  of  this  State, 

CITED:  1  Scam.  186;  1  Gilm.  266:  76  111.  355;  94  111.  63;  110  111.  614;  15 
Bradw.  47.  See  41  111.  279;  18  ill.  539;  37  111.  210;  11  Pet.  41,  post  185; 
Acts  of  1836-7,  154;  1838-9,  124. 

173 


181  VANDALIA. 


Webb  v.  Sturtevant. 


or  any  person  other  than  the  plaintiff,  then  they  ought  to  find 
for  the  defendant. 

4.  That  if  the  jury  shall  be  satisfied  from  the  evidence  that 
the  plaintiff   had  no   property   or  interest  in  the  timber  and 
soil,  or  either,  on  which   the   supposed   trespasses  were  com- 
mitted, at  the  time,  then  the  plaintiff  can  not  recover  of  the 
defendant. 

5.  That  if  the  jury  shall  be  of  opinion   from  the  evidence 

that  at  the  time  of  the  committing  of  the  supposed 
[*182]  trespasses,  the  *  plaintiff  was  but  a  mere  squatter  upon 

the  land,  without  any  title  thereto,  either  in  law  or 
equity,  and  that  said  land  was  the  property  of  the  United 
States  or  of  this  State,  and  also  that  the  supposed  trespasses 
were  not  committed  within  the  plaintiff's  actual  inclosure, 
then  the  law  is  for  the  defendant. 

6.  That  if  the  jury  shall  believe  from  the  evidence  that  the 
land  was,  at  the   time   of   the  committing   of   the   supposed 
trespasses,  the  uninclosed  land   of   the  United  States   and  of 
this   State,  and  in  possession  of  the  United  States,  and  not  in 
the  actual  possession  of  the  plaintiff,  then  the  law  is  for  the 
defendant. 

7.  That  if  the  jury  shall  be  of  opinion   from  the  evidence 
that  the   plaintiff  entered  on  the  land  claiming  it  as  the  prop- 
erty of  the   United   States,  and   not  claiming   or  setting  up 
title  to  the  land  adversely   from  that  of  the  United  States, 
and  the  supposed   trespasses  were   not  committed  within  the 
actual  improvement  of  the  plaintiff,  then  the  law  is  with  the 
defendant. 

8.  That  if  the  jury  shall  believe  from  the  evidence  that 
the  plaintiff  is  entitled  to  recover  at  all,  they   are  to  confine 
their  inquiry  to  the  injury  done  to  the  actual  possession  of  the 
plaintiff,  and  not  to  the  value  of  the  timber  or  trees  carried 
away. 

The  fifth  and  seventh  instructions  the  Court  refused  to 
give,  but  gave  the  others,  the  eighth  with  this  qualification  : 
that  the  jury  must  confine  their  inquiry  to  the  injury  done 
to  the  actual  possession,  and  that  the  value  of  the  timber 
was  a  criterion  by  which  to  estimate  that  injury,  and  in- 
structed the  jury  that  "where  the  claim,  settlement  and  act- 
ual possession  concur  and  are  made  bona  fidey  and  contin- 
ued to  the  extent  of  160  acres,  or  other  lower  legal  subdi- 
vision of  the  public  lands,  the  action  of  trespass  can  be  main- 
tained against  any  one,  other  than  the  real  owner,  who 
shall  unlawfully  enter  upon  such  subdivision,  doing  damage 
thereon  by  cutting  down  timber  against  the  will  of  the  actual 
occupant,  and  disturbing  him  in  his  possession ;  and  that 


DECEMBER  TEEM,  1835.  182 

Webb  v.  Sturtevant. 

the  right  to  such  action  is  not  confined  to  an  injury  to  the 
actual  inclosure."  To  which  said  several  opinions  of  the 
Court  in  refusing  to  give  said  fifth  and  seventh  instructions, 
and  the  eighth  instruction  as  qualified,  and  in  giving  the  said 
last  mentioned  instruction,  the  said  defendant  by  his  counsel 
excepts,  and  prays  the  Court  to  sign  and  seal  this  his  bill  of 
exceptions,  and  make  the  same  a  part  of  the  record,  which  is 
done. 

SYDNEY  BEEESE.  [L.  s.] 

All  of  the  opinions  of  the  Court  which  were  excepted  to,  are 
assigned  for  error. 

B.  S.  MOEKIS  and  JAMES  GBANT,  for  the  appellant. 
G.  SPEING  and  E.  PECK,  for  the  appellee. 

LOCKWOOD,  Justice.delivered  the  opinion  of  the  Court: 
*This  was  an  action  of  trespass  quare  clausum  [*183] 
fregit,  brought  in  the  Cook  Circuit  Court  by  Stur- 
tevant against  Webb,  for  breaking  and  entering  the  close  of 
Sturtevant  and  felling  and  carrying  away  the  timber  growing 
thereon.  To  the  declaration  filed  in  the  cause,  the  defendant 
below  pleaded  not  guilty.  On  the  trial  in  the  Circuit  Court, 
the  defendant  below  asked  the  Court,  among  other  things,  to 
instruct  the  jury  as  follows,  to  wit:  "  That  if  the  jury  shall  be 
of  opinion  from  the  evidence,  that  at  the  time  of  the  commit- 
ting of  the  supposed  trespasses  the  plaintiff  was  a  mere  squat- 
ter on  the  land,  without  any  title  thereto,  either  in  law  or 
equity,  and  that  said  land  was  the  property  of  the  United 
States  or  of  this  State,  and  also  that  the  supposed  trespasses 
were  not  committed  within  the  plaintiff's  actual  inclosure,  then 
the  law  is  for  the  defendant,"  which  instruction  the  Circuit 
Court  refused  to  give.  This  refusal  is  assigned  for  error,  and 
the  question  presented  is,  whether  the  instruction  ought  to 
have  been  given.  In  actions  of  trespass  quare  clausum  jregit, 
the  law  is  well  settled  that  possession  of  the  close  is  sufficient 
to  sustain  the  action  against  any  person  who  shall  enter  upon 
that  possession,  except  the  owner.  The  possession,  where 
that  alone  is  relied  on,  must,  however,  be  an  actual  and  not  a 
constructive  possession.  The  mere  entry  upon  a  tract  of  land 
without  any  color  of  title,  and  inclosing  a  small  part  of  it, 
does  not,  of  itself,  constitute  an  actual  possession  of  any  more 
land  than  is  inclosed.  A  contrary  doctrine  would  lead  to  great 
uncertainty.  It  could  with  as  much  propriety  be  contended 
that  the  actual  possession  of  a  part  of  a  tract  of  land  drew  to 
it  the  possession  of  a  whole  section  containing  640  aci  es,  as 

175 


183  VANDALIA. 


Turney  v.  Goodman. 


that  such  actual  possession  drew  after  it  the  possession  of  160 
acres,  or  any  other  legal  subdivision  of  a  lot.  This  would  be 
manifestly  unreasonable.  The  reason  that  the  law  protects 
the  mere  possession  of  land,  where  the  possessor  is  a  squat- 
ter, is  to  preserve  the  public  peace;  and  such  protection  is  not 
intended  as  an  encouragement  to  squatters,  and  ought  not, 
therefore,  to  be  extended  any  further  than  is  necessary  to  at- 
tain the  desired  object. 

From  this  view  of  the  law,  and  the  reason  upon  which  it  is 
founded,  the  Court  below  ought  to  have  given  the  instruc- 
tions asked  for  by  the  defendant  below.  For  this  error,  with- 
out inquiring  into  the  other  errors  that  have  been  assigned, 
the  judgment  must  be  reversed  with  costs. 

Judgment  reversed. 


[*184]     *ANTHONY   B.  TURKEY,  plaintiff  in  error,  v. 
WILLIAM  GOODMAN,  defendant  in  error. 

Error  to  Wayne. 

The  certificate  of  a  land  officer  is  evidence. 

The  parol  testimony  of  a  county  surveyor,  in  relation  to  the  location  of  a 
tract  of  land,  is  good  evidence. 

THIS  cause  was  tried  at  the  March  term,  1835,  of  the  "Wayne 
Circuit  Court,  before  the  Hon.  Justin  Harlan. 

From  the  record,  all  that  can  be  .discovered  is,  that  the 
cause  was  appealed  from  a  justice  of  the  peace  to  the  Circuit 
Court,  and  in  that  Court  a  judgment  was  rendered  for  the  de- 
fendant for  $8.27  and  costs.  What  the  suit  was  about  no- 
where appears;  but  that  it  was  a  suit,  is  pretty  evi- 
[*185]  dent  from  the  fact  that  *a  judge,  clerk,  and  lawyers 
figure  in  the  record  and  a  bill  of  costs  is  tacked  on  to 
the  end  of  it. 

J.  PEAKSON,  for  the  plaintiff  in  error. 
O.  B.  FICKLIN,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  appeal  from  the  judgment  of  a  justice  of  the 
peace.  There  is  consequently  no  declaration  from  which  the 
Court  can  learn  the  nature  of  the  plaintiff 's  claim,  or  cause  of 
action  ;  and  the  bill  of  exceptions  taken  in  the  case  is  too  im- 
perfect to  supply  the  information.  All  that  is  shown  by  it  is, 

176 


DECEMBER  TERM,  1835.  185 

Lovett  et  al.   v.  Noble. 

that  Turner  purchased  of  Goodman  an  improvement  on  Con- 
gress land;  that  the  price  was  paid,  and  the  improvement  de- 
livered, according  to  contract ;  that  the  defendant  was  per- 
mitted to  give  in  evidence  the  certificate  of  purchase  from  the 
Land  Office,  of  a  tract  of  land  purchased  by  his  son,  and  that 
the  county  surveyor  was  permitted  to  prove  by  parol  that 
the  improvement  was  on  the  land  described  in  that  certificate. 
These  are  all  the  facts  disclosed  by  the  record.  It  is  there- 
fore manifest  that  they  do  not  make  out  such  a  case  as  to  en- 
able this  Court  to  adjudicate  upon  the  final  decision  of  the 
Court  below.  As  to  the  opinion  of  the  Court  in  admitting 
the  register's  certificate  to  be  read  in  evidence,  which  was 
objected  to,  there  is  no  error.  The  official  certificate  of  a  land 
officer  is  made  evidence  by  the  express  terms  of  the  statute, 
(R.  L.  280 ;  Gale's  Stat.  287,)  and  the  parol  testimony  of  the 
surveyor  was  also  properly  admitted.  It  was  not  only  the 
highest,  but  it  was  the  only  kind  of  evidence  which  could  be 
adduced  in  support  of  the  fact  which  it  was  offered  to  establish. 
As  the  only  point,  then,  which  is  presented  by  the  record,  re- 
lates to  the  admission  of  testimony,  and  that  being  decided 
correctly  by  the  Court  below,  the  judgment  of  that  Court 
will  be  affirmed  with  costs. 

Judgment  affirmed. 


JOSEPH  LOVETT  and  HIRAM  INGERSOLL,  appellants,  v. 
MARK  NOBLE,  Sen.,  appellee. 

Appeal  from  Cook. 

SETTLER  ON  PUBLIC  LAND — ACTION  OF  TRESPASS  BY,  POK  CUTTING  TIM- 
BER.— A  settler  upon  the  public  lands  of  the  United  States  can  not  main- 
tain an  action  of  trespass  against  a  person  who  may  enter  and  cut  down 
the  timber  upon  a  portion  of  the  legal  subdivision  of  land  upon  which  he 
is  settled,  but  which  is  not  actually  inclosed  or  occupied  by  such  settler. 

*THIS  cause  was  tried  at  the  May  term,  1835,  of  the     [*186] 
Cook  Circuit  Court,  before  the  Hon.  Sidney  Breese  and 
a  jury.     A  verdict  was  rendered  for  the  appellee  for  $195. 
Judgment  was  rendered  on  this  verdict,  and  an  appeal  taken 
to  this  Court. 

T.  D.  CATON  and  S.  A.  DOUGLAS,  for  the  appellants. 

The  plaintiff,  in  an  action  of  trespass  qua/re  clausum  fregit, 
must  show  himself  to  be  in  the  actual  possession  of  the  locus 

VOL.  1-12  177 


186  YANDALIA. 


Luvett  et  al.  ».  Noble. 


in  quo  at  the  time  ilie  trespasses  complained  of  were  com- 
mitted. 1  Chit.  Plead.  175-8;  1  Johns.  511;  12  Johns.  183; 
2  Saunders'  Plead,  and  Ev.  866,  and  cases  there  cited;  2  Wheat. 
Selwyn's  N.  P.  482,  n.  1 ;  1  Term  R.  430 ;  2  Phil.  Ev.  132  ; 
Esp.  N.  P.  347,  or  266  in  Part  2d;  1  Wendell,  466  ;  2  Ohio, 
105. 

It  is  the  exclusive  province  of  the  jury  to  judge  of  evidence, 
and  to  determine  facts. 

E.  PECK  and  G.  SPRING,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  trespass  guare  clausum  fregit,  com- 
menced by  Noble  against  Lovett  and  Ingersoll,  in  the  Cook 
Circuit  Court.  The  defendants  below  pleaded  not  guilty,  and 
on  the  trial  of  the  cause,  moved  the  Court  to  instruct  the 
jury,  "  That  the  plaintiff  must  show  himself  to  have  been  in 
the  actual  and  exclusive  possession  of  the  land  at  the  time  of 
the  trespasses  complained  of ;  and  that  it  was  not  sufficient  for 
the  plaintiff  to  show  that  he  was  residing  upon  and  cultivating 
another  part  of  the  same  legal  subdivision,  unless  he  also 
proved  that  the  alleged  trespasses  were  committed  upon  the 
part  of  the  lot  inclosed  or  under  cultivation  by  him."  This 
instruction  the  Court  refused  to  give,  but  instructed  the  jury, 
that  "The  peaceable  occupation  and  possession  by  building,  or 
cultivating  and  residing  on  any  portion  of  the  legal  subdivis- 
ion of  the  public  lands,  not  exceeding  160  acres,  will  entitle 
such  possessor  to  an  action  against  the  unauthorized  entry  of 
any  individual  who  may  enter  and  cut  down  the  timber,  or 
interfere  with  the  possession  of  such  legal  subdivision." 

This  instruction  was  clearly  erroneous  according  to  the  decis- 
ion of  the  case  of  Webb  v.  Sturtevant,  (ante  181,)  decided 
at  the  present  term. 

The  judgment  must  therefore  be  reversed  with  costs. 

Judgment  reversed. 

178 


DECEMBER  TEEM,  1835.  187 

Pinckard  et  al  v.  The  People. 


*WI-LLIAM  G.  PINCKARD,  DAVID  PEMBROKE,     [*187] 
B.  F.  LONG,  NATHAN  C.  D.  TAYLOR,  and 
HENRY  LONG,  plaintiffs   in  error,  v.    THE 
PEOPLE  OF  THE  STATE  OF  ILLINOIS. 

Error  to  Madison. 

JUDGMENT  ON  RECOGNIZANCE — PRACTICE.— It  is  error  to  enter  up  final 
ju  Iginent  upon  a  recognizance,  upon  the  recognizers  failing  to  appear, 
agreeably  to  the  terms  of  their  recognizance.  Before  final  judgment  can  be 
entered,  a  scire  facias  must  issue  against  them  to  show  cause  why  judg- 
ment and  execution  should  not  be  had,  or  an  action  must  be  instituted  on 
the  bond  to  recover  the  penalty. 

JUDGMENT  was  rendered  in  this  cause  at  the  November  spe- 
cial term  of  the  Madison  Circuit  Court,  1834,  by  the  Hon. 
Theophilus  W.  Smith,  for  $100  and  costs.  To  reverse  this 
judgment  a  writ  of  error  was  prosecuted  to  this  Court. 

J.  M.  KEUM,  for  the  plaintiffs  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

The  record  in  this  case  shows  a  judgment  on  a  bond  or 
recognizance  of  the  defendants,  to  appear  and  testify  on  be- 
half of  the  People,  at  a  Circuit  Court,  to  be  holden  at 
Edwardsville  on  the  4th  Monday  of  October,  1835.  The  de- 
fendants, on  being  called,  did  not  appear,  and  their  default  was 
entered  and  a  final  judgment  rendered  for  the  penalty  of 
the  recognizance  and  costs. 

The  error  assigned  is  that  this  final  judgment  was  irregular. 
'  This  we  can  not  doubt. 

Instead  of  a  final  judgment,  a  scire  facias  should  have  been 
sued  out  against  the  defendants,  to  show  cause  why  judgment 
and  execution  should  not  be  had  or  an  action  instituted  on  the 
bond  to  recover  the  penalty.  The  final  judgment  is  reversed, 
and  the  cause  remanded  for  further  proceedings. 

Judgment  reversed. 

WILSON,  Ch.  J.,  did  not  sit  in  this  cause. 

CITED  :  19  HI.  171. 

179 


187  VANDALIA. 


Slocumb  v.  Kuykendall. 


JOHN  C.  SLOCUMB,  plaintiff  in  error,  v.  LEWIS  KUYKEN- 
DALL, defendant  in  error. 

Error  to  Gallatin. 

In  an  action  for  slander,  it  is  sufficient  to  prove  the  substance  of  the 
words  charged,  but  proof  of  equivalent  words  is  not  sufficient. 

THIS  was  an  action  on  the  case  for  slander,  brought  by  the 

plaintiff  in  error  against  the  defendant  in  error  in  the 

[*1SS]     Court  *below.     The  cause  was  tried  at  the  April 

term,  1835,  of  the  Gallatin  Circuit  Court,  before  the 

Hon.  Alexander  F.  Grant. 

On  the  trial  the  following  bill  of  exceptions  was  taken : 
"  Be  it  remembered  that  on  the  trial  of  this  cause,  the 
plaintiff  proved  by  Isaac  Hogan,  that  defendant  said  the 
miller  must  have  taken  my  wheat ;  that  from  the  quantity  of 
wheat  I  took  to  mill,  and  the  quantity  of  flour  received,  he 
must  have  taken  my  wheat.  It  was  no  other  man  than  John 
C.  Slocumb.  This  was  in  August  or  September,  1833.  That 
lie,  witness,  heard  defendant  say  that  he  had  heard  Slocumb 
had  taken  too  much  toll  from  others,  and  that  charges  had 
been  made  against  Slocumb  to  Mr.  Graves,  the  owner  of  the 
mill ;  that  he  saw  Slocumb  go  to  the  hopper  and  take  out 
two  half  bushels  of  wheat,  and  put  it  away,  and  put  one  of 
them  in  a  dark  corner ;  that  what  he  knew,  he  knew,  and 
what  he  saw,  he  saw ;  that  he,  defendant,  asked  Slocumb 
what  he  was  doing.  Slocumb  said  he  was  taking  toll.  This 
was  in  January  last.  That  Slocumb,  when  taking  the  wheat, 
looked  over  his  shoulder,  as  if  to  see  if  anybody  saw  him  ; 
and  defendant  was  talking  about  his  wheat  being  lost  at  the 
mill  where  Slocumb  had  taken  his  wheat.  Defendant  had 
taken  thirty-two  bushels  of  wheat  to  the  mill  on  this  occasion, 
John  Jordon,  plaintiff's  witness,  proved  that  in  conversation 
with  defendant  last  winter,  Esq.  Slocumb's  name  was  men- 
tioned. Defendant  asked  if  it  was  John  Slocumb  who  had 
attended  the  mill  at  New  Haven.  Witness  replied  it  was, 
but  that  he  wrote  his  name  John  C.  Slocumb.  Defendant  then 
said  :  '  "Well,  he  is  the  man  who  took  my  wheat ;  there  was 
too  much  toll  taken,  from  the  quantity  of  wheat  I  took  to  mill 
and  the  flour  I  got.  I  saw  him  take  two  half  bushels  out  of 
the  hopper,  and  put  it  away.  I  asked  him  what  he  was  do- 
ing. He  said  he  was  taking  toll.  This  was  in  the  night.' 

CITED  :  2  Gilm.  723  ;  15  111.  230  ;  82  111.  205. 

180 


DECEMBER  TERM,  1835.  188 

Slocumb  v,  Kuykendall. 

Defendant  said,  *  I  would  not  swear  he,  Slocumb,  stole  my 
wheat,  but  if- 1  had  to  swear,  I  would  swear  I  believe  he  stole 
my  wheat'  Whereupon,  the  defendant,  by  his  attorney, 
moved  the  Court  to  instruct  the  jury  to  find  in  the  way  of  a 
\  nonsuit ;  which  motion  the  Court  sustained,  and  instructed 
the  jury  that  the  evidence  did  not  support  either  count  of  the 
plaintiff's  declaration,  and  for  them  to  find  accordingly  in  the 
way  of  a  nonsuit.  To  which  opinion  of  the  Court  the 
plaintiff,  by  his  counsel  excepts,  and  it  is  allowed,  etc. 

ALEX.  F.  GRANT.     [L.  s.]" 

A.  P.  FIELD  and  H.  EDDY,  for  the  plaintiff  in  error. 

JESSE  J.  ROCIKSOJST  and  W.  J.  GATEWOOD,  for  the  defendant 
in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action   of  slander  for  words   imputing 
theft 

*The  declaration  contained  three  counts:  1st    For     [*189] 
the  words :  "  The  miller  stole  my  wheat,  and  he  was 
no  other  man  than  John  C.   Slocumb."      2d.     "He  stole  my 
wheat"     And   3d,   "  John  C.  Slocumb  is  a  thief ;  he  stole  my 
wheat" 

The  defendant  pleaded  not  guilty,  and  not  guilty  within  one 
year.  On  the  trial,  after  the  plaintiff 's  evidence  had  been 
heard,  the  defendant  moved  the  Court  to  instruct  the  jury  to 
find  as  in  case  of  a  nonsuit 

The  Court  instructed  the  jury  accordingly,  and  also  that  the 
evidence  did  not  support  either  count  of  the  plaintiff's  declara- 
tion. To  these  instructions  the  plaintiff  excepted.  The  jury 
found  for  the  defendant 

The  only  error  assigned  is  the  instructions  of  the  Circuit 
Court,  and  we  are  now  to  inquire  whether  or  not  they  were 
correct  It  will  not  be  doubted  that  the  rule  which  heretofore 
required  the  plaintiff  to  prove  the  words  to  have  been  spoken 
precisely  as  laid,  has  been  relaxed,  and  that  it  will  now  be  suf- 
ficient to  prove  the  substance  of  them  as  charged;  while, 
however,  this  rule  is  admitted  to  its  fullest  extent,  we  still  un- 
derstand that  the  proof  of  equivalent  words  will  not  be  proving 
the  substance  of  those  charged  to  have  been  spoken.  To 
prove  words  of  similar  import  will  not  surely  be  proving  the 
substance  of  those  laid,  but  the  proving  of  other  and  different 
words.  In  the  case  of  Maitland  v.  Goldney  (2  East,  438)  the 
Court  say,  "  Though  the  plaintiff  need  not  prove  all  the  words 
laid,  yet  he  must  prove  so  much  of  them  as  is  sufficient  to  sus- 

181 


1S9  VANDALIA. 


Slocumb  v.  Kuykendall. 


tain  his  cause  of  action,  and  it  is  not  enough  for  him  to  prove 
equivalent  words  of  slander."  The  case  of  Olmsted  v.  Miller 
(1  Wendell,  510)  supports  the  same  doctrine. 

This  rule  should  be  adhered  to.  Further  relaxation  would 
be  attended,  in  my  opinion,  with  infinite  mischief.  The  alle- 
gation and  the  proof  should  correspond ;  yet  if  a  party  be 
charged  with  the  speaking  of  one  set  of  words,  and  the  proof 
show  another  set,  of  an  equivalent  character,  and  that  be  ad- 
mitted to  be  sufficient  to  sustain  the  cause  of  action,  how  is  the 
party  to  be  prepared  to  defend  himself  ?  If  this  latitude  be 
indulged  in,  and  proof  of  equivalent  words  be  sufficient,  how 
will  the  defendant  be  able  to  know  what  he  must  come  pre- 
pared to  meet?  One  set  of  words  is  charged,  another  is 
proved,  and  the  party  surprised  and  held  answerable  for 
what  he  might  have  rebutted  or  explained  by  testimony,  had 
he  had  reason  to  suppose  such  proof  would  have  been  offered. 
The  introduction  of  such  a  course  seems  to  me  subversive  of 
the  first  principles  of  the  rules  of  evidence,  and  ought  not  to 
prevail.  Besides,  the  uncertainty  of  the  memory  of  witnesses, 
and  their  understanding  of  the  import  of  words,  and  the  sense 
in  which  they  may  have  understood  them  to  have  been 
used,  would  render  a  party  accountable  for  their 
[*190]  *mispprehension,  very  frequently,  if  they  could  be 
allowed  to  testify  to  the  import  of  his  expressions. 

It  is  the  province  of  the  Court  and  jury  to  construe  his 
words,  and  not  that  of  the  witnesses.  Apply  this  reasoning  to 
the  case  before  us,  and  it  will  be  readily  perceived  that  the  proof 
does  not  sustain  either  of  the  counts  of  the  declaration.  From 
the  bill  of  exceptions,  such  of  the  testimony  as  did  not  fall 
within  the  plea  of  the  statute  of  limitations  is  stated  by  one 
witness  to  refer  to  a  conversation  had  with  the  defendant  in 
January,  1833,  and  is  narrated  by  the  witness  in  these  words  : 
'•  That  he  heard  defendant  say,  that  he  had  heard  Slocumb  had 
taken  too  much  toll  from  others,  and  that  charges  had  been 
made  against  Slocumb  to  Mr.  Graves,  the  owner  of  the  mill ; 
that  he  saw  Slocumb  go  to  the  hopper,  and  take  out  two  half 
bushels  of  wheat,  and  put -it  away,  and  put  one  of  them  in  a 
dark  corner;  that  what  he  knew,  he  knew,  and  what  he  saw, 
he  saw;  that  the  defendant  asked  Slocumb  what  he  was  doing. 
Slocumb  said  he  was  taking  toll ;  that  Slocumb,  when  taking 
the  wheat,  looked  over  his  shoulder,  as  if  to  see  if  anybody 
saw  him,  and  defendant  was  talking  about  his  wheat  being 
lost  at  the  mill  where  Slocumb  had  taken  his  wheat.  Defend- 
ant had  taken  thirty-two  bushels  of  wheat  to  the  mill  on  this 
occasion." 

The  other  witness  refers  to  a  conversation  with  defendant 

182 


DECEMBER  TEEM,  1835.  190 

Slocumb  v.  Kuykendall. 

at  another  time,  and  says  that  Slocumb's  name  was  mentioned. 
Defendant  asked  if  it  was  John  Slocumb  who  had  attended 
the  mill  at  New  Haven.  Witness  replied  that  it  was,  but  that' 
he  wrote  his  name  John  C.  Slocumb.  Defendant  then  said, 
Well  he  is  the  man  who  took  my  wheat;  there  was  too  much 
toll  taken  from  the  quantity  of  wheat  I  took  to  mill,  and  the 
flour  I  got.  I  saw  him  take  two  half  bushels  out  of  the  hop- 
per, and  put  it  away.  I  asked  him  what  he  was  doing.  He 
said  he  was  taking  toll.  This  was  in  the  night.  Defendant 
said  I  would  not  swear,  he,  Slocumb,  stole  my  wheat,  but  if  I 
had  to  swear,  I  would  swear  I  believe  he  stole  my  wheat. 

It  will  be  remarked,  that  the  conversation  detailed  by  the 
two  witnesses,  happened  a£  different  periods,  and  were  entire- 
ly disconnected.  It  is  not  the  inquiry  now  whether  or  not 
this  language  might  not  be  actionable,  if  laid  as  proved,  with 
the  necessary  averments,  though  it  might  perhaps  involve  a 
question  of  doubt  whether  the  defendant  intended  to  charge 
the  pla'ntiff  with  a  felonious  intention  in  taking  the  wheat, 
and  whether  the  taking  of  too  much  toll,  unless  accompanied 
by  indisputable  evidence  of  such  intent,  could  constitute  a  lar- 
ceny, but  whether  the  language  proved  to  have  been  used, 
taken  separately  and  disconnectedly,  as  stated  by  each  witness, 
sustains  either  count  of  the  declaration.  I  can  not  conceive  that 
either  taken  separately,  supports  either  of  the  counts 
in  the  declaration.  The  proof  can  *be  viewed  in  no  [*191] 
other  light  than  as  establishing  the  speaking  of  equiv- 
alent words,  and  by  no  means  as  supporting  the  proof  of  the 
substance  of  the  words  as  laid.  I  am  therefore  of  the  opinion 
that  the  instructions  of  the  Court  were  correctly  given,  and 
that  the  judgment  of  the  Circuit  Court  ought  to  be  affirmed 
with  costs. 

Judgment  affirmed. 

183 


191  VANDALIA. 


Droullard  v.  Baxter  et  al. 


JOHN  DROULLARD,  plaintiff  in  error,  v.  THOMAS  BAX- 
TER, DRURY  L.  WALLS,  JOHN  GAIN,  SAMUEL  ALEX- 
ANDER, THOMAS  W.  BUCKNER,  E.  L.  R  WHEELOCK, 
MARTIN  LADMER,  JOHN  T.  GILMER,  SARAH  L.  WILL- 
IAMS, JOHN  KIDDLE,  JOHN  WOOD  and  ROBERT  MC- 
QUEEN, defendants  in  error. 

Error  to  Adams. 

A  complainant  has  an  unquestionable  right  to  amend  his  bill  in  equity 
tefore  answer  filed,  and  in  many  cases  after,  and  before  replication  filed. 

THE  proceedings  in  this  case  in  the  Court  below  were  had 
before  the  Hon.  Kichard  M.  Young,  at  a  special  term  of  the 
Adams  Circuit  Court,  in  November,  1834. 

A.  WILLIAMS  and  J.  W.  WHITNEY,  for  the  plaintiff  in  error. 

O.  H.  BROWNING  and  C.  WALKEK,  for  the  defendants  in 
error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

The  complainant  filed  his  bill  in  equity  to  set  aside  and  an- 
nul certain  conveyances  of  land  alleged  to  have  been  obtained 
through  fraudulent  representations  and  combinations  of  the 
defendants.  On  the  return  of  the  process  of  summons,  a  por- 
tion of  the  defendants  being  served  with  process,  their  appear- 
ance was  entered  and  a  motion  made  by  their  counsel  to  dis- 
miss the  bill  for  want  of  equity.  From  the  order  of  dismissal 
it  also  appears,  that  a  cross-motion  was  interposed  by  com- 
plainant for  leave  to  amend  his  bill.  The  Circuit  Court  re- 
fused the  leave  asked  to  amend,  and  dismissed  complainant's 
bill ;  and  this,  among  other  grounds,  is  assigned  for  error. 

Without  meaning  to  affirm  the  doctrine  laid  down  in  the 
case  of  Edwards  v.  Beard  (Breese,  41),  decided  under  the 
former  organization  of  this  Court,  that  a  bill  in  equity  may  be 
properly  dismissed  on  motion,  and  that  the  party  is 
[*192]  not  bound  to  demur  to  the  bill  in  Border  to  avail 
himself  of  a  dismissal,  it  will  be  sufficient  to  consider 
the  single  point  whether  the  Circuit  Court  did  not  err  in  re- 
fusing me  leave  asked  to  amend  the  bill. 

We  understand  the  rule  to  be,  in  pleadings  in  equity,  that 
courts  give  greater  latitude  and  indulgence  to  the  parties  than 
in  courts  of  law,  and  tthat  a  complainant  has  a  right,  consid- 

CITED  :    47  111.  492.     See  13  111.  35. 

161 


DECEMBER  TERM,  1835.  192 

Seward  v.  Wilson. 

ered  unquestionable,  to  amend  his  bill  before  answer  tiled, 
and  in  many  cases  after  and  before  replication  filed.  When 
such  amendment  is  made  the  Court  will  judge  of  its  relevancy, 
and  if  it  be  impertinent  or  entirely  foreign  to  the  cause  it  will  be 
ordered  to  be  stricken  out.  We  consider  the  amendment  not  a 
matter  of  discretion  hi  the  Court  to  allow  or  refuse,  and  there- 
fore it  is  good  ground  of  error  that  such  refusal  was  ordered 
in  the  present  case. 

The  judgment   of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  remanded  for  further  proceedings. 

Judgment  reversed. 

WILSON,  Ch.  J.,  did  not  sit  in  this  cause. 


SAMUEL  SEWARD,  for  the  use  of  George  W.  Chapman, 
plaintiff  in  error,  v.  ABIJAH  WILSON,  defendant  in 
error. 

Error  to  Adams. 

JUSTICE  COURT — NON-RESIDENT — SECURITY  FOR  COSTS. — A  non-resident 
plaintiff  can  not  institute  a  suit  before  a  justice  of  the  peace  until  he  has 
given  a  bond  for  costs,  although  he  sue  for  the  use  of  a  resident.  The 
statute  in  relation  to  costs  in  the  Circuit  Court,  in  like  cases,  is  different 

THIS  cause  was  decided  in  the  Court  below,  at  the  April 
term,  1835,  by  the  Hon.  Richard  M.  Young. 

A.  WILLIAMS,  for  the  plaintiff  in  error. 

O.  H.  BEOWNING,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  instituted  originally  before  a  justice  of 
the  peace.  From  the  bill  of  exceptions  it  appears  that  the 
plaintiff  was  at  the  time  of  the  commencement  of  the  suit  a 
non-resident,  but  that  the  person  for  whose  use  it  was  insti- 
tuted was  a  resident.  It  also  appears  that  a  motion  was  made 
before  the  justice  to  dismiss  the  cause  for  the  reason  of  the 
non-residence  of  the  plaintiff.  The  Circuit  Court,  on  the 
cause  being  brought  to  that  Court,  dismissed  the  cause  because 
of  the  non-residence  of  the  plaintiff  at  the  time  of  its  com- 
mencement before  the  justice,  and  entered  a  judgment  for  de- 
fendant for  the  costs.  To  reverse  this  judgment,  this  writ  of 

CITED:    11  111.  120.    See  Starr  &  C.  111.  Stat.  1437,  Ch.  79,  If  15. 

185 


102  YANDALIA. 


Pearsons  v.  Lee. 


error  is  prosecuted,  and  the  only  question  made  here, 
[*193J     *is  whether  the  Circuit  Court  decided  erroneous! y  in 
dismissing  the  cause. 

Strictly  the  order  dismissing  the  cause  is  not  conformable  to 
the  judgment  which  should  have  been  entered  on  the  facts  as 
they  appear ;  and  it  is  presumed  to  be  a  clerical  error  in  using 
the  word  "  dismiss,"  when  it  should  have  directed  the  judg- 
ment of  the  justice  to  have  been  reversed.  The  effect  may  be 
the  same,  however,  as  no  procedendo  was  awarded,  and  the  de- 
fendant recovered  his  costs  in  both  Courts.  The  judgment  of 
the  Circuit  Court  is  substantially  correct. 

Nothing  is  more  certain  from  the  act  regulating  the  proceed- 
ings before  justices  of  the  peace  in  civil  actions,  than  that  a 
non-resident  plaintiff  shall  not  institute  a  suit  until  he  shall  have 
given  a  bond  for  costs.  It  is  a  disability  imposed  on  him,  and 
as  effectually  precludes  his  right  to  sue  until  the  bond  be  given, 
as  in  the  case  of  an  alien  enemy.  The  statute  in  relation  to 
costs  in  like  cases  in  the  Circuit  Court,  is  different,  because  it 
speaks  of  persons  for  whose  use  suits  may  be  instituted,  but 
even  there  it  may  be  justly  doubted  whether  under  that  act, 
the  person  for  whose  use  the  suit  is  instituted,  filing  a  bond 
would  be  a  compliance  with  that  act.  It  only  declares  he  shall 
be  liable  for  costs,  but  neither  by  that  law,  nor  the  practice  of 
the  Court,  could  a  judgment  be  rendered  in  the  action  against 
him,  for  the  costs  in  favor  of  the  defendant.  If  he  prevailed 
he  is  driven  to  a  separate  action. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


HIRAM  PEARSONS,  appellant,  v.  NELSON  LEE,  appellee. 

Appeal  from  Cook. 

PLEADING. — The  copy  of  an  agreement  or  instrument  in  writing,  at- 
tached to  a  declaration  or  filed  with  it,  forms  no  part  of  the  declaration. 

VARIANCE. — A  variance  between  the  agroement  declared  on,  and  the  dec- 
laration, should  be  taken  advantage  of  on  the  trial  by  a  demurrer  to  evi- 
dence, or  a  motion  for  a  nonsuit. 

AGREEMENT  TO  ATTEND  PUBLIC  LAND  SALE. — An  agreement  to  attend  a 
public  land  sale  of  the  United  States,  and  purchase  a  tract  of  land,  is  not 
fraudulent  or  against  the  laws  of  the  U.  S. 

A  declaration  averring  that  L.,  for  the  consideration  of  3200  to  be  paid  by  P. , 
engaged  to  attend  the  sale  of  the  public  lands  at  C.,  at  a  certain  day  named, 

CITED:    47  111.  157;  75  111.  236. 

186 


DECEMBER  TEEM,  1835.  193 

Pearsons  t>.  Lee. 

and  bid  off  a  quarter  section  of  land,  provided  it  could  be  purchased 
for  eight  *dollars  an  acre,   and  averring  that  P.  was  ready  on  his    [*194] 
part  to  pay  the  $200,  and  that  although  the  lands  sold  for  less  than 
eight  dollars  per  acre,  L.  did  not  purchase  the  same,  etc.,  is  good  on  gen- 
eral demurrer. 

THIS  was  an  action  of  assumpsit  commenced  in  the  Cook 
Circuit  Court,  by  the  appellant  against  the  appellee,  upon  an 
agreement  in  writing  signed  by  the  appellee  only. 

The  cause  was  decided  at  the  October  term,  1835,  by  the 
Hon.  Stephen  T.  Logan,  and  a  judgment  for  costs  rendered  for 
the  appellee. 

A.  COWLES  and  G.  SPRING,  for  the  appellant. 

E.  PECK,  for  the  appellee,  contended  : 

1.  That  the  declaration  shows  no  sufficient  consideration. 

2.  That  the  declaration  disclosed  a  contract  all  on  one  side, 
in  contravention  of  the  common  law  ;  and  of   the  laws  of  the 
United  States,  regulating  the  sale  of  public  lands. 

3.  That  the  agreement  is  against  good  policy,  and  contra 
fionos  mores. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  trespass  on  the  case  on  promises. 
The  declaration  is  on  a  special  agreement  in  writing  not  un- 
der seal,  and  is  described  to  have  been  entered  into  between 
the  plaintiff  and  defendant  for  the  purchase,  sale  and  convey- 
ance of  a  certain  quarter  section  of  land  ;  and  it  also  avers  that 
the  defendant,  for  the  consideration  of  two  hundred  dollars,  to 
be  paid  by  the  plaintiff,  engaged  to  attend  the  sale  of  the  pub- 
lic lands  at  the  town  of  Chicago,  at  a  certain  day  named,  and 
bid  off  the  said  qua/ter  section,  provided  it  could  be  pur- 
chased for  a  sum  not  exceeding  eight  dollars  per  acre,  and  to 
request  the  Register  of  the  Land  Office  at  said  place  to 
grant  a  certificate  to  said  plaintiff  in  his  name,  on  the  payment 
of  the  purchase  money  by  the  plaintiff  to  the  register ;  or  if, 
on  such  payment,  the  certificate  was  issued  to  defendant,  then 
he  engaged  to  execute  a  good  and  sufficient  warranty  deed  for 
eaid  land.  The  breach  assigned  is  that  although  the  plaint- 
iff was  ready  on  his  part  to  pay  the  two  hundred  dollars,  and 
although  the  land  sold  for  less  than  eight  dollars  per  acre  at 
such  sale,  yet  the  defendant  did  not  and  would  not  purchase 
eaid  land,  nor  had  he  requested  the  register  to  make  the  cer- 
tificate to  said  plaintiff ;  nor  would  lie  execute  a  good  and  suf- 
ficient warranty  deed  for  the  same  land,  or  of  any  part  thereof 
to  the  plaintiff,  according  to  the  tenor  and  effect  of  eaid  agree- 

187 


194 

VANDALIA. 

Pearsons  ».  Lee. 

inent,  although  often  requested,  etc.  To  this  declaration  a 
general  demurrer  was  interposed,  and  the  Circuit  Court  ad- 
judged the  declaration  bad.  To  the  declaration  is  annexed  a 
copy  of  the  agreement,  and  if  the  Court  were  permitted  to 

look  to  that  copy,  which  it  can  not  see  with  legal  eyes, 
[*195]  because  it  has  *been  constantly  decided  by  this  Court 

to  form  no  part  of  the  declaration,  it  might  perceive 
that  the  agreement  is  signed  by  the  defendant  only,  and  is  not 
binding  on  the  plaintiff,  and  therefore  void  for  want  of  mu- 
tuality ;  but  on  that  point  it  can  give  no  opinion,  because  it  is 
not  before  the  Court.  If  the  defendant  had  wished  to  have 
presented  that  question,  he  should  have  taken  issue,  and  taken 
advantage  of  it  either  by  a  demurrer  to  the  evidence,  or  moved 
for  a  nonsuit  on  the  trial  for  a  variance  between  the  count  and 
the  instrument  declared  on.  This  not  having  been  done,  the 
only  question  to  be  determined  is,  whether  the  declaration  is 
substantially  good.  No  objection  that  can  be  perceived,  exists 
to  the  declaration  which  would  be  available  on  a  general  de- 
murrer, and  for  aught  that  appears,  it  is  sufficient.  Nor  are 
we  prepared  to  say  that  the  contract,  as  stated  in  the  count,  is 
either  contra  lonos  mores,  or  against  any  public  Jaw. 

The  contract,  as  laid,  proposes,  so  far  as  is  disclosed  to  the 
Court,  no  more  than  the  employment  of  an  agent  to  purchase 
a  piece  of  public  land  at  the  public  sale,  at  a  price  stipulated, 
not  only  above  the  minimum  price,  but  greatly  so,  at  which 
the  public  lands  may  be  sold,  for  a  stipulated  compensation, 
and  to  vest  the  title  in  the  plaintiff.  Here,  then,  is  surely 
no  combination  to  lessen  the  price,  nor  an  arrangement  not  to 
bid  against  one  another.  The  agreement  pre-supposes  a  com- 
petition, because  the  agent  is  confined  to  not  giving  more  than 
$8  per  acre.  How  then  can  this  be  said  to  be  in  violation  of 
the  statutes  of  the  United  States  prohibiting  combinations  to 
lessen  the  price  of  public  lands  ?  In  what  way  can  it  operate 
to  the  injury  of  the  public  morals?  Surely  a  person  may 
legally  depute  another  to  bid  for  him,  for  the  public  lands,  for 
any  or  no  compensation,  without  violating  any  public  law,  or 
contravening,  in  the  least,  principles  of  public  policy,  or  with- 
out injury  to  public  morals.  It  seems  to  be  as  free  from  such 
an  imputation  as  can  possibly  be  imagined;  and  without  extra- 
neous evidence,  to  show  that  such  was  the  intention  and  real 
object  of  the  parties,  can  fraudulent  motives  be  imputed  with- 
out proof,  and  in  the  entire  absence  of  any  supposed  reason- 
able motive? 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded  for  further  proceedings.  The  appellant  re- 
covers costs.  Judgment  reversed. 

188 


DECEMBER  TEEM,  1835.  196 

Arnold>.  Johnson. 


*JOHN  ARNOLD,  plaintiff  in  error,  v.   JACOB     [*196] 
JOHNSON,  assignee  of  Ezra  Baker,  Jr.,  de- 
fendant in  error. 

Error  to  Wabash. 

ASSIGNOR  OP  NOTE — PROOF  OP  CLAIM  BY  ADVERSE  PARTY. — An  assignor 
of  a  note  is  not  the  adverse  party  contemplated  by  the  statute  permitting1  a 
party  to  prove  his  demand  by  the  adverse,  etc.,  in  a  trial  before  a  justice  of 
the  peace. 

APPROPRIATION  OP  PAYMENTS. — In  relation  to  the  law  of  appropriating 
payments,  where  the  debtor  pays  generally,  the  rule  is  well  settled  that  the 
creditor  may  apply  the  payment  to  whatever  debt  he  sees  proper,  unless 
there  are  circumstances  that  would  render  the  exercise  of  such  discretion  on 
the  part  of  the  creditor  unreasonable,  and  enable  him  to  work  injustice  to 
his  debtor." 

ADMISSIONS— EVIDENCE. — It  is  a  well  settled  rule  of  law,  that  where  one 
party  relies  on  the  admission  of  the  other  party,  the  whole  of  the  admission 
must  be  taken  together. 

THIS  cause  was  tried  at  the  March  term,  1835,  of  the  Wa- 
bash Circuit  Court,  before  the  Hon.  Justice  Harlan,  and  a 
judgment  rendered  for  the  defendant  in  error  for  $28.45,  in 
affirmance  of  the  decision  of  the  justice  of  the  peace. 

J.  PEARSON,  for  the  plaintiff  in  error. 

O.  B.  FICKLIN,  for  the  defendant  in  error. 

CITED:  67111.333. 

*  Application  of  payments. 

The  debtor  has  the  right  to  direct  the  application  of  payments  to  any  of 
several  distinct  accounts  owed  by  him.  Bayley  v.  Wynkoop,  5  Gilni.  449; 
Jackson  v.  Bailey,  12  III.  159;  Sprague  v.  Hazenwinkle,  53  111.  419;  Am. 
Exp.  Co.  v.  Lesern,  39  111.  313;  Craig  v.  Miller,  103  111.  605;  Plain  v.  Roth, 
107  111.588;  Bonnell  v.  Wilder,  67  III.  327;  Lewis  v.  Pease,  85  111.  31; 
Wilhelmt-.  Schmidt,  84  111.  183;  King  v.  Andrews,  30  Ind.  429;  Parker  v. 
Green,  8  Met.  144;  Blackstone  Bank  v.  Hill,  10  Pick.  129;  Bean  v.  Brown, 
54  N.  H.  395;  She^od  v.  Haight,  26  Conn.  432;  Irwin  .«.  Paulett,  1 
Kans.  418;  Champanois  v.  Port,  45  Miss.  355;  Calvert  v.  Carter,  18  Md. 
73;  Semmes  ».  Boyken,  27  Ga.  47;  Mann  v.  Marsh,  2  Cai.  99;  Allen  v.  Cul- 
ver, 3  Den.  284;  Leef  v.  Goodwin,  Taney,  460. 

This  rule  only  applies  to  voluntary  payments.  Blackstone  Bank  v.  Hill, 
10  Pick.  129. 

A  direction  as  to  application  may  be  implied  from  circumstances.  Han- 
sen  v.  Rounsavell,  74  111.238.  See,  also,  Illsley  v.  Jewett,  2  Mpt.  168; 
Mitchell  v.  Ball,  2  Harr.  &  J.  159;  Rowland  v.  Rench,  7  Blackf.  236;  Stone 
v.  Seymour,  15  Wend.  19. 

Where  the  debtor  fails  to  make  an  application  before  or  at  the  time  of  pay- 
ment, the  right  to  do  so  passes  to  the  creditor.  McFarland  v.  Lewis,  2 
Scam.  345;  Bayley  v.  Wynkoop,  5  Gilm.  449;  Hintz  v.  Cohn,  29  111.  308; 
Lowery  r.  Gear,  32  111.  382;  D.  S.  Machine  Co.  v.  Buckles,  89  III.  237;  Bon- 
nell v.  Wilder,  67  III.  327;  Wilhelm  v.  Schmidt,  84  111.  183;  Watt  v.  Hocb, 


196  VANDALIA. 


Arnold  r.  Johnson. 


LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  commenced  before  a  justice  of  the  peace 
by  Johnson,  assignee  of  Baker,  against  Arnold,  and  appealed 
into  the  Circuit  Court  of  Wabash  county.  On  the  trial  of  the 
cause  in  the  Circuit  Court,  the  following  bill  of  exceptions  was 
taken,  to  wit:  "Be  it  remembered  that  at  the  March  term,  1835, 
the  above  cause  came  on  to  be  tried  by  the  Court.  Plaintiff 
declared  in  the  Court  below  on  the  following  note :  '  Ten 
days  after  date,  for  value  received,  I  promise  to  pay  E.  Baker, 
Jr.,  or  bearer,  forty-nine  dollars  and  forty-seven  cents  without 
defalcation  or  discount.  March  6,  1830. 

JOHN  ARNOLD.'  " 

Upon  which  note  the  following  indorsements  appear: 
"July  31,  1830.  Reed,  on  the  within  sixteen  dollars  and 
forty-six  cents — Feby.  19th,  cr.  by  cash  $9.12  on  this  note." 
The  assignment  is  in  these  words :  "  For  value  received  I 
transfer  the  within  note  unto  Jacob  Johnson.  Nov.  24,  1834. 
Ezra  Baker,  Jr."  After  the  introduction  of  the  note,  the  de- 

25  Pa.  St.  411:  Bobe  v.  Stickney,  36  Ala.  482;  Jones  v.  Williams,  39  Wis. 
300;  Bird  v.  Davis,  14  N.  J.  Eq.  467;  Johnson  v.  Johnson,  20  Ga.  857; 
Whitaker  v.  Groover,  54  111.  174;  Harding  v.  Tifft,  75  N.  Y.  461;  N't'l 
Bank  r.  Bigler,  83  N.  Y.  51;  Waterman  v.  Younger,  49  Mo.  413;  Pattison 
r.  Hull,  9  Cow.  747;  Calvert  v.  Carter,  18  Md.  73;  Haymes  v.  Waite,  14 
Cal.  446;  Mayor  r.  Patten,  8  U.  S.  (4  Cr.)317. 

This  rule  does  not  apply  where  the  circumstances  are  such  as  to  render  the 
exercise  of  such  discretion  on  the  part  of  the  creditor  unreasonable,  and 
enable  him  to  work  injustice  to  the  debtor.  In  addition  to  the  above  case  of 
Arnold  v.  Johnson,  see  Taylor  r.  Coleman,  20  Tex.  772. 

He  may,  however,  apply  the  payment  on  a  just  and  valid  demand,  the  cor- 
rectness of  which  is  not  admitted  by  the  debtor.  McLendon  v.  Frost,  57  Ga. 
448;  Lee  v.  Early,  44  Mel.  80. 

He  may  even  apply  it  to  a  claim  which  would  not  support  an  action,  as  a 
debt  on  which  no  action  will  lie  under  the  statute  of  frauds;  Haynes  v. 
Nice,  100  Mass.  327;  S.  C.,  1  Am.  Rep.  109;  Murphy  v.  Webber,  61  Me.  478; 
or  a  debt  barred  by  the  statute  of  limitations;  Ramsevt?.  Warner.  97  Mass. 
8;  Armistead  v.  Brooke,  18  Ark.  521;  Jackson  v.  Burke,  1  Dill.  311.  See, 
also,  Thurlow  v.  Gilmore,  40  Me.  378;  Rohan  v.  Hanson,  11  Cush.  47;  Phil- 
pott  r.  Jones,  4  Nev.  &  Man.  14;  Mills  v.  Fowkes,  5  Bing.  N.  C.  445;  S.  C.,  7 
Scott,  444. 

No  application  by  a  creditor  will  operate  as  a  new  promise  to  pay  a  debt 
barred  by  the  statute  of  limitations.  Lowery  v.  Gear,  32  111.  382. 

The  claim  to  which  the  payment  is  applied  must  not  be  illegal.  Rohan 
v.  Hanson,  11  Cush.  44;  Greener.  Tyler,  39  Pa.  St.  361;  Caldwellt'.  Went- 
worth,  14  N.  H.  437;  Bancroft  v.  Dumas,  21  Vt.  457;  Phillips  v.  Moses,  65 
Me.  70. 

The  creditor  can  not  apply  a  payment  of  a  sum  smaller  than  either  of  two 
notes  held  by  him  to  both  notes,  but  may  apply  the  whole  upon  either. 
Wheeler  r.  House,  27  Vt.  735. 

Application  by  either  the  debtor  or  creditor  is  conclusive  when  made. 
Miller  r.  Montgomery,  31  111.  350;  Mayor  v.  Patten,  8  U.  S.  (4  Cr.)317; 
Muskingum  r.  Carpenter,  7  Ohio,  21 ;  Simson  v .  Ingham,  2  Barn.  &  C.  65. 
This  rule  applies  to  an  application  by  the  debtor  to  an  illegal  claim.  Hub- 
bell  r.  Flint,  81  Mass.  550;  Rohan  v.  Hanson,  11  Cush.  44;  Caldwell  v.  Went- 

180 


DECEMBER  TERM,  1835.  196 

Arnold  v.  Johnson. 

fendant  stated  he  had  no  witness  or  legal  evidence  to  establish 
his  account  of  payment  of  money  to  Ezra  Baker,  Jr.,  more  tl.an 
sufficient,  together  with  the  indorsements  on  the  note,  to  have 
paid  the  note,  except  he  should  call  on  the  said  Ezra  Baker,  Jr., 
and  wished  therefore,  under  the  statute,  to  prove  his 
own  account  by  his  own  testimony,  *or  by  the  adverse  [*197] 
party,  to  which  evidence  the  plaintiff  by  his  counsel  ob- 
jected, and  such  objection  was  sustained  by  the  Court,  and  the 
defendant's  (Arnold)  testimony  to  prove  his  account  of  payment, 
was  excluded  by  the  Court.  The  defendant  next  offered  in 
evidence  an  account  current  rendered  by  Ezra  Baker,  Jr., 
against  the  said  defendant,  since  giving  the  said  note,  and  also 
the  credits  of  money  paid  by  defendant  to  the  said  Baker, 
since  the  giving  of  the  said  note;  which  account  showed  pay- 
ments exceeding  the  whole  amount  of  said  note,  and  for  which 
the  said  Baker  before  the  transfer  of  the  note  had  given  the 
said  Arnold  credit,  on  the  book  account,  instead  of  applying 
the  credit  on  the  note.  This  evidence  was  admitted  by  the 

•worth,  14  N.  H.  431 ;  Plummer  v.  Erskine,  58  Me.  59;  Mueller  v.  Wiebracht, 
47  Mo.  468;  Treadwell  v.  Moore,  34  Me.  112.  See,  also,  Brockschmidt  v. 
Hagebusch,  72  111.  562. 

Application  by  the  creditor  may  be  implied  from  circumstances.  Truscott 
r.King,  6  N.  Y.  147;  Webb  v.  Dickinson,  11  Wend.  62. 

In  the  absence  of  an  application  by  either  the  debtor  or  the  creditor,  the 
Court  will  make  such  application  as  justice  and  equity  require.  Bayley  v. 
Wynkoop,  5  Gilm.  449;  Jones  v.  Benedict,  83  N.  Y.  79;  Griswold  v.  Bank, 
93'N.  Y.  301;  Ayer  v.  Hawkins,  12  Vt.  26;  Chester  v.  Wheelwright,  15 
Conn.  562;  Barker  v.  Conrad,  12  Serg.  &  R.  301;  Bacon  v.  Brown,  IBibb, 
334;  Pierce  v.  Knight,  ?1  Vt.  701;  Allen  v.  Culver,  3  Den.  284;  Oliver  v. 
Phelps,  20  N.  J.  L.  180;  Youmans  v.  Heartt,  34  Mich.  397;  Field  v.  Hol- 
land, 10  U.  S.  (6  Cr.)  8. 

Application  will  be  made  to  that  debt  for  which  the  security  is  most  pre- 
carious. Wilhelm  v.  Schmidt,  84  111.  183;  Bowen  v.  Fridley,  8  Bradw.  595; 
Hansen  v.  Rounsavell,  74  111.  238;  Chester  v.  Wheelwright,  15  Conn.  562. 

Many  courts  make  such  application  as  is  considered  most  beneficial  to  the 
debtor;  and,  generally,  payments  are  applied  to  debts  first  due.  Sprague 
v.  Hazenwinkle,  53  111.  419;  Hansen  v.  Rounsavell,  74  111.  238;  Allen  v.  Cul- 
ver, 3  Den.  284;  Langdon  v.  Bowen,  46  Vt.  512;  Vance  v.  Monroe,  4  Gratt. 
53;  Dows».  Morewood,  10  Barb.  183;  Fairchild  ».  Holly,  10  Conn.  176; 
Crompton  v.  Pratt,  105  Mass.  25;  Pattison  v.  Hull,  9  Cow.  747;  Neal  v. 
Allison,  50  Mias.  175;  Windsor  v.  Gassaway,  2  Harr.  &  J.  402;  The  Antarc- 
tic, 1  Sprague,  206. 

Some  courts  apply  the  payment  to  debts  which  are  secured  to  release  the 
securities.  Dows  v.  Morewood,  10  Barb.  183;  Thomas  v.  Kelsey,  30  Barb. 
268;  Vance  v.  Monroe,  4  Gratt.  53;  Stamford  Bank  v.  Benedict,  15  Conn. 
438;  Callahan  v.  Boozman,  21  Ala.  246;  Tones  v.  Benedict,  83  N.Y.  79.  But, 
see,  Hansen  v.  Rounsavell,  74  111.  238;  Bowen  v.  Fridley,  8  Bradw.  595. 

Payments  made  on  an  account  current  will  be  applied  by  the  Court  on  the 
earliest  items.  Sprague  v.  Hazenwinkle,  53  111.  419;  Hansen  v.  Rounsavell, 
74  111.  238;  Shedd  v.  Wilson,  27  Vt,  478;  Wendt  v.  Ross,  33  Cal.  650;  Har- 
rison v.  Johnston,  27  Ala.  445;  Gushing  v.  Wyman,  44  Me.  121;  Moore  v. 
Gray,  22  La.  Ann.  289;  Worthley  v.  Emerson,  116  Mass.  374;  Truscott  v. 
King,  6  N.  Y.  147. 

191 


197  VANDALIA. 


Arnold  v.  Johnson. 


Court,  but  decided  that  unless  the  said  Arnold  had  directed 
the  specific  application  of  the  money  to  the  note,  the  said 
Baker  had  a  right  to  apply  the  payments  to  the  book  account. 

The  errors  relied  on  are,  that  the  Court  erred  in  not  permit- 
tine  Arnold  to  be  a  witness  to  prove  his  set-off  against  Baker, 
and  in  deciding  that  unless  Arnold  had  directed  the  speciiic 
application  of  the  money  to  the  note,  that  Baker  had  a  right 
to  apply  the  payments  to  the  book  account. 

By  the  5th  section  of  an  act  to  amend  "  An  act  concerning 
Justices  of  the  Peace  and  Constables"  approved  February  13. 
1827  (R.  L.  409 ;  Gale's  Stat.  420),  it  is  enacted,  that  "  In  all 
trials  before  justices  of  the  peace  when  either  party  may  not 
have  a  witness  or  Dther  legal  testimony  to  establish  his  or  her 
demand,  discount  or  set-off,  the  party  claiming  such  demand, 
discount  or  set-off,  may  be  permitted  to  prove  the  same 
by  the  testimony  of  the  adverse  party,"  etc.  Is  the  assignor 
of  the  note  the  adverse  party  contemplated  by  this  act  ?  This 
question  is  readily  answered  by  the  fact  that  he  is  not  a  party 
to  the  suit.  The  suit  can  be  carried  on  without  the  use  of  his 
name  and  against  his  consent.  He  can  not  therefore  be  con- 
sidered in  any  sense  the  "  adverse  party  "  in  the  suit,  and  con- 
sequently the  court  decided  correctly  in  refusing  to  permit 
the  defendant  below  to  be  sworn  under  the  act  above  recited. 

In  relation  to  the  law  of  appropriating  payments  where  the 
debtor  pays  generally,  the  rule  is  well  settled  that  the  creditor 
may  apply  the  payment  to  whatever  debt  he  sees  proper,  unless 
there  are  circumstances  that  would  render  the  exercise  of  such 
discretion  on  the  part  of  the  creditor  unreasonable,  and  enable 
him  to  work  injustice  to  his  debtor.  In  this  case  no  circum- 
stances exist  that  ought  to  take  this  power  out  of  the  creditor's 
hands. 

The  only  evidence  that  any  payment  had  been  made  to  Baker 
except  what  was  credited  on  the  note,  was  his  admissions  in 
an  account  current,  which  account  shows  that  the 
[*198]  payments  had  *been  applied  toward  the  discharge  of 
the  amount  in  the  ordinary  course  of  dealing.  The 
fair  inference  in  such  a  case  is,  that  the  application  of  the  pay- 
ments was  in  accordance  with  the  views  of  both  parties.  It 
is  also  a  well  settled  rule  of  law,  that  where  a  party  relies  on 
the  admissions  of  the  other  party,  the  who^e  of  the  admissions 
must  be  taken  together.  The  defendant  below  produced  no 
evidence  of  payment  whatever,  except  what  is  furnished  by 
Baker's  account  current,  and  that  shows  that  the  payments 
were  made  to  settle  the  items  of  indebtedness  charged  against 
the  defendant  below.  It,  therefore,  taken  together,  amounts 
to  nothing  in  proof  of  a  payment  on  the  note,  as  it  does  not 

192 


DECEMBEE  TEEM,  1835.  198 

Mitcheltree  v.  Sparks. 

appear  from  the  bill  of  exceptions  that  there  was  a  balance 
due  to  the  defendant  below  on  the  account  current. 

The  Court  therefore  affirm  the  judgment  below  with  costs. 

Judgment  affirmed. 

WILSON,  Ch.  J.,  did  not  sit  in  this  cause. 


JOHN  MITCHELTREE,  appellant,, v.  MATTHEW  SPAKKS, 

appellee. 

Appeal  from  Schuyler. 

JUSTICE  COURT — APPEAL  BY  ONE  OF  TWO  DEFENDANTS. — Where  a  judg- 
ment is  rendered  by  a  justice  of  the  peace  against  two  defendants,  and  one 
of  them  only  appeals  to  the  Circuit  Court,  the  cause  should  be  docketed 
igainst  the  appellant  only. 

JURISDICTION. — Where  an  appeal  is  taken  from  a  justice  of  the  peace  to 
the  Circuit  Court,  if  the  justice  had  jurisdiction  of  the  suit  when  it  was  com- 
menced before  him  the  Circuit  Court  may  render  judgment  for  a  sum  ex- 
ceeding $100,  if  such  excess  is  for  interest  that  has  accrued  subsequent  to  the 
rendition  of  the  judgment  by  the  justice  of  the  peace. 

THIS  cause  was  tried  at  the  ^November  term,  1835,  of  the 
Schuyler  Circuit  Court,  before  the  Hon.  Eichard  M.  Young. 

M.  MCDONNELL,  for  the  appellant. 
G.  "W.  P.  MAXWELL,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
The  following  are  the  facts  in  this  case  :  Sparks  commenced 
an  action  before  a  justice  of  the  peace  against  Mitcheltree  and 
Teal,  and  the  justice  gave  judgment  against  both  defendants. 
Mitcheltree  took  an  appeal  to  the  Circuit  Court,  where  the  ap- 
peal was  dismissed  because  both  defendants  had  not  joined  in 
the  appeal.  From  this  decision  of  the  Circuit  Court,  Mitcheltree 
appealed  to  this  Court,  and  the  judgment  of  the  Circuit  Court 
was  reversed  by  default,  and  the  cause  remanded  to  the  Cir- 
cuit Court  of  Schuyler  county,  with  directions  to  that 
Court  to  "  reinstate  *said  cause  in  said  Court,  and  pro-  [*199] 
ceed  therein  upon  the  merits  of  the  final  judgment." 

The  Circuit  Court  of  Schuyler  county,  upon  receiving  a  copy 
of  the  order  of  this  Court,  ordered  the  cause  to  be  reinstated 

CITED:  91  111.  225.    See  2  Gilm.  389;  27  111.  293;  33  111.  384. 

VOL.  1—13  193 


190  VANDALIA. 


Mitcheltree  v.  Sparks. 


on  the  docket  of  said  Circuit  Court,  in  the  name  of  Sparks  v. 
Mttcheltree.  On  the  trial  of  this  cause  in  the  Court  below, 
judgment  was  rendered  in  favor  of  the  plaintiff  against  the  de- 
fendant  for  $50  debt,  and  $50.37£  damages,  besides  costs.  From 
this  judgment  an  appeal  has  been  brought  into  this  Court,  and 
the  following  errors  relied  on  for  a  reversal,  to  wit :  1.  The 
judgment  is  void  for  want  of  certainty  as  to  which  of  the  de- 
fendants judgment  was  against,  and  the  judgment  is  rendered 
for  more  than  was  justifiable.  2.  The  Court  erred  in  render- 
ing a  judgment  against  one  of  the  defendants  in  the  cause,  and 
not  against  both. 

It  will  be  perceived  by  the  facts  of  the  case,  that  the  ques- 
tion whether  an  appeal  can  be  taken  by  one  of  two  defendants, 
against  whom  a  justice  has  rendered  judgment,  is  not  now  be- 
fore this  Court.  Nor  did  the  former  reversal  by  default  of  the 
decision  of  the  Circuit  Court,  decide  this  point  any  farther 
than  concerned  this  case  when  it  again  reached  the  Circuit 
Court.  When  the  order  of  reversal  was  presented  to  the 
Court  below  for  its  action,  the  question  naturally  presented 
itself  to  that  Court,  How  shall  the  cause  be  docketed  ?  Shall 
it  be  docketed  against  Mitcheltree  and  Teal,  or  shall  it  be  dock- 
eted against  Mitcheltree,  who  alone  had  taken  the  appeal  to  the 
Circuit  Court,  and  who  had  also  appealed  to  this  Court  ?  The 
Circuit  Court  ordered,  and  we  think  correctly,  that  the  cause 
should  be  docketed  against  Mitcheltree  only.  Teal  being  satis- 
fied with  the  decision  of  the  magistrate,  it  would  be  unreason- 
able to  compel  him  to  litigate  further,  contrary  to  his  will,  and 
perhaps  thereby  subject  himself  to  heavy  loss.  The  cause  then 
was  correctly  docketed  in  the  Circuit  Court,  against  Mitchel- 
tree. And  from  the  form  of  the  entry  of  the  judgment  that 
the  "  plaintiff  recover  of  the  defendant,"  it  is  sufficiently  cer- 
tain that  the  judgment  was  only  against  Mitcheltree. 

The  other  point  in  the  case  is,  Did  the  Circuit  Court  give 
judgment  for  more  than  was  due  on  the  note  filed  in  the  case  ? 
The  note  was  for  $50  with  twenty-five  per  cent,  per  annum  in- 
terest. The  Circuit  Court  allowed  interest  from  the  date  of  the 
note  till  the  rendition  of  the  judgment  in  the  Circuit  Court. 
This  was  correct.  (Tindall  v.  Meeker^  ante  137.)  The  Court 
in  that  case  intimate  that  the  Circuit  Court  (its  jurisdiction  be- 
ing unlimited)  may  enter  judgment  for  more  than  $100,  where 
the  justice  had  jurisdiction  of  the  suit  when  it  was  commenced 
before  him,  and  the  excess  is  for  interest  that  has  ac- 
[*200]  crued  subsequent  to  the  rendition  of  the  judgment  *be- 
fore  the  justice,  and  we  see  no  reason  to  dissent  from 
that  opinion. 

194 


DECEMBER  TERM,  1835.  200 

Brother  et  al.  v.  Cannon. 

The  judgment,  therefore,  must  be  affirmed  with  costs. 

Judgment  affirmed. 
WILSON,  Ch.  J.,  did  not  sit  in  this  cause. 


ALEXANDER  BROTHER  and  THOMAS  T.  JANUARY,  plaint- 
iffs in  error,  v.  EPHRAIM  CANNON,  defendant  in  error. 

Error  to  Pike. 

ACTION  FOK  ESCAPE  —  EVIDENCE.  —  In  an  action  against  a  constable  for 
an  escape  upon  a  ca.  sa.,  or  for  neglecting  to  execute  a  ca.  so.,  proof  that  the 
ca.  sa.  was  issued  upon  the  oath  of  an  agent  of  the  plaintiffs  is  not  admis- 
sible. 

DUTY  OF  OFFICER  TO  OBEY  PROCESS.  —  In  anaction  against  an  officer  for  an 
escape  on  process  sued  out,  and  placed  in  the  officer's  hands  to  execute,  or  in 
an  action  for  a  false  return,  or  for  a  refusal  to  execute  such  process,  it  is  no 
justification  for  suffering  an  escape,  or  for  making  a  false  return,  or  for  a  re- 
fusal to  execute  such  process,  that  the  forms  of  law  in  suing  out  such  process 
have  not  all  been  observed.  If  the  process  be  regular  on  its  face,  and  it  be 
not  absolutely  void  having  been  issued  without  the  authority  of  law,  the 
officer  can  never  be  made  a  trespasser,  although  it  may  have  been  erroneously 
issued  ;  and  he  is  bound  to  execute  the  process,  although  it  may  have  been 
erroneously  sued  out." 

If  the  magistrate  had  jurisdiction  of  the  subject-matter,  the  officer  was  not 
bound  to  inquire  further  into  the  accuracy  of  his  proceedings,  but  should 
have  proceeded  to  obey  the  mandate  of  the  warrant. 

THIS  cause  was  tried  at  the  April  term,  1835,  of  the  Pike 
Circuit  Court,  before  the  Hon.  Richard  M.  Young.  After  the 
decisions  of  the  Circuit  Court  in  relation  to  the  admissibility  of 
the  evidence  offered,  the  plaintiff  being  unable  to  proceed 
farther,  suffered  a  nonsuit,  subject  to  the  reversal  and  opinion 
of  the  Supreme  Court. 


.  THOMAS  and  CYRUS  WALKER,  for  the  plaintiffs  in  error, 
cited  5  Johns.  89  ;  13  Johns.  529  ;  15  Johns.   378  ;  8  Cowen 

CITED:  Officer  can  not  justify  under  void  process:  20111.296;  107  111.  157. 

Oath  by  agent:    See  Wilson  v.  Nettleton,  12  111.  61. 

*  Ministerial  officers  —  How  far  protected  by  process. 

"  An  execution  regular  on  its  face,  and  supported  by  a  valid  judgment, 
will  protect  an  officer  in  its  execution.1'  Oakes  v.  Williams,  107  111.  154, 
157,  citing  the  above  case  of  Brother  v.  Cannon;  Bassett  v.  Bratton,  86  111. 
153;  Smith  v.  People,  99  111.  445. 

Process  regular  on  its  face  protects  the  officer  executing  it  from  liability 
in  an  action  of  trespass.  In  addition  to  the  above  case  of  Brother  v.  Can- 
non, see  Barnes  r.  Bnrber,  1  Gilrn.  401,  iiote  in  this  ed.;  Parker  v.  Smith,  1 
Gilm.  411;  McDonald  r.  Wilkie,  18  111.  22;  Teft  v.  Ashbaugh,  13  111.  602; 
Martin  v.  Walker,  15  111.  378:  Stafford  r  Low,  20  111.  152;  Davis  r.  Wilson, 
65  111.  525;  Housh  r.  People,  75  111.  487;  Reader  v.  Peats,  86  111.  275.. 

195 


VANDALIA. 


Brother  et  al.  v.  Cannon. 


194;  6  Monroe,  622;  1  J.  J.  Marshall,  56;  2  Saund.  101  Y, 
note  2. 

O.  H.  BROWNING,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  on  the  case.  The  declaration  contains  a 
count  for  an  escape,  the  defendant  being  a  constable  and  hav- 
ing arrested  a  defendant  on  a  warrant  issued  by  a  justice  of  the 
peace,  at  the  suit  of  the  plaintiff,  and  permitted  him  to  go  at 
large ;  another  for  a  false  return  as  such  officer;  and  a  third 
for  not  arresting  defendant  on  the  warrant.  Plea  not  guilty. 

On  the  trial  the  plaintiffs  introduced  the  warrant  issued  by 
the  justice  of  the  peace,  with  the  return  indorsed 
[*201]  thereon ;  after  *  which  the  Circuit  Court  permitted 
the  justice  to  state  that  the  oath,  upon  which  the  war- 
rant had  been  obtained  and  issued,  was  made  by  the  agents  of, 
and  not  by  the  plaintiffs,  in  the  action  before  the  justice, 
though  the  plaintiffs  objected  to  the  introduction  of  this  evi- 
dence. The  Circuit  Court  then,  on  motion  of  the  defendant, 
excluded  the  warrant  and  return  from  the  jury.  To  the  de- 
cision of  the  Court  in  thus  admitting  the  testimony  of  the 
justice  in  relation  to  the  oath  of  the  agents  of  the  plaintiffs, 
and  the  exclusion  of  the  warrant  and  return  from  the  jury,  the 
plaintiffs  excepted,  and  the  only  question  now  made  in  this 
Court  is  whether  the  Circuit  Court  decided  erroneously  in  ad- 
mitting such  testimony,  and  in  excluding  the  warrant  given  in 
evidence  to  the  jury. 

It  can  not  be  doubted  that  the  Circuit  Court  erred  on  both 
points.  It  should  have  permitted  the  warrant  and  return  to 
have  gone  to  the  jury,  not  merely  because  they  had  been 
properly  read  in  evidence,  but  because  it  was  legal  and  rele- 
vant testimony  to  establish  the  point  at  issue.  In  an  action 
against  an  officer  for  an  escape  on  process  sued  out,  and  placed 
in  the  officer's  hands  to  execute,  or  in  an  action  for  a  false  re- 
turn, or  for  a  refusal  to  execute  such  process,  it  is  no  justifica- 
tion for  suffering  an  escape,  or  for  making  a  false  return,  or 
for  a  refusal  to  execute  such  process,  that  the  forms  of  law  in 
suing  out  such  process  have  not  all  been  observed.  If  the 
process  be  regular  on  its  face,  and  it  be  not  absolutely  void, 
having  been  issued  without  the  authority  of  law,  the  officer 
can  never  be  made  a  trespasser,  although  it  may  have  been 
erroneously  issued ;  and  he  is  bound  to  execute  the  process, 
although  it  may  have  been  erroneously  sued  out.  If  the  mag- 
istrate had  jurisdiction  of  the  subject-matter,  the  officer  was 

•    196 


DECEMBEK  TEEM,  1835.  201 

The  People  v.  Taylor. 

not  bound  to  inquire  further  into  the  accuracy  of  his  pro- 
ceedings, but  should  have  proceeded  to  obey  the  mandate  of 
the  warrant.  In  a  case  in  England  {Beck  v.  JBroad,  3  Term, 
R.  185),  Kenyon,  Chief  Justice,  says :  u  It  is  incomprehen- 
sible  to  say  that  a  person  shall  be  considered  a  trespasser  who 
acts  under  the  process  of  the  Court."  By  the  return  to  the 
warrant,  the  officer  appears  to  have  so  acted,  and  the  plaintiffs 
had  a  perfect  legal  right  to  inquire  into  the  truth  of  such 
return.  The  warrant  was  not  absolutely  void,  although  the 
oath  was  made  by  the  agents  of  the  plaintiffs,  but  merely 
voidable,  even  if  it  be  determined  that  the  oath  required  by 
the  statute  could  not  be  made  by  an  agent.  The  testimony  of 
the  justice  was  wholly  irrelevant,  and  ought  not  to  have  been 
received ;  and  it  was  most  clearly  erroneous  for  the  Circuit 
Court  to  exclude  the  warrant. 

In  the  case  of  Lattin  v.  timith,  (Breese,  284)  decided  in  this 
Court  at  the  December  term,  1830,  these  principles  are  dis- 
tinctly laid  down ;  and   they  are  supported  by  ref- 
erence  to  numerous   decisions  made  *in   both   the      [*202] 
American  and  English  Courts,  and  by  one  in  particu- 
lar, in  which  the  Judge  of  the   Circuit   Court  of  the  United 
States  says,  "That  where  process  is  delivered  to  an  officer,  he  is 
bound  to  act  in  conformity  to  the  commands  of  the  writ ;  and  if 
he  proceeds  to  execute  it,  he  is  bound  to  complete  the  execu- 
tion."    (Meecher  et  al.  v.   Wilson,  1  Gallison,  519.) 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  is  remanded  with  directions  to  the  Circuit  Court 
of  Pike  county  to  issue  a  venire  de  now. 

Judgment  reversed. 

WILSON,  Ch.  J.,  did  not  sit  in  this  cause. 


THE  PEOPLE  OF  THE  STATE  OF   ILLINOIS,  ex  relatione 
HENRY  HARRIS  v,  EDMUND  D.  TAYLOR. 

Application  for  a  writ  of  Habeas  Corpus. 

HABEAS  CORPUS — JURISDICTION, — The  Supreme  Court  has  no  original 
jurisdiction  to  authorize  the  allowance  of  writs  of  .habeas  corpus.  It  has 
no  authority  except  as  an  Appellate  Court,  in  the  review  of  legal  proceedings, 
to  allow  writK  of  habeas  corpus.  But  a  party  can  apply  for  such  writ  to 
one  of  the  judges  of  the  Supreme  Court,  or  to  one  of  the  judges  of  the  Cir- 
cuit, Courts,  and  obtain  the  writ. 

A.  COWLES,  for  the  People. 

197 


109  VANDALIA. 


Latham  r.  Darling. 


A.  P.  FIELD,  for  the  defendant. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
The  allowance  of  a  writ  of  habeas  corpus  in  this  case  is 
refused.  The  Court  has  no  original  jurisdiction  to  authorize 
the  allowance  of  such  writs,  unless  it  be  in  the  exercise  of 
their  appellate  powers.  In  the  present  instance,  the  party  who 
it  is  said  is  restrained  of  her  liberty,  does  not  appear  to  be 
held  under,  or  by  virtue  of  any  process  or  other  legal  author- 
ity, or  the  color  of  any,  but  is  alleged  to  be  holden  without 
pretense  of  right,  and  by  mere  arbitrary  force.  It  can  not  be 
doubted  that  the  Court  have  no  jurisdiction  in  the  case. 

In  the  case  of  Bollman  and  Swartwout  (4  Cranch,  75),  the 
Supreme  Court  of  the  United  States,  whose  organization  un- 
der the  Constitution  of  the  United  States  is  similar  to  ours,  as 
an  Appellate  Court,  decided  that  it  had  no  authority,  except  as 
an  Appellate  Court  in  the  review  of  legal  proceedings,  to  en- 
tertain jurisdiction  and  allow  writs  of  habeas  corpus.  The 
party  can  apply  to  a  judge  of  this  Court  or  to  one  of  the 
judges  of  the  Circuit  Courts,  and  obtain  the  writ. 

Motion  disallowed. 


[*203]  *PHILIP  C.  LATHAM,  plaintiff  in  error,  v. 
EPHKAIM  DARLING,  impleaded,  etc.,  defendant 
in  error. 

Error  to  Sangamon. 

INTEREST. — The  words  "  with  three  dollars  per  month  interest  after  due 
till  paid,"  mean  three  dollars  per  month,  or  thirty-six  dollars  per  annum, 
and  not  that  interest  should  be  calculated  at  the  rate  of  thirty-six  per  centum 
per  annum.  The  interest  for  one  year  on  a  note  for  thirty  dollars  and  sev- 
enty-five cents,  "  with  three  dollars  per  month  interest,"  is  thirty-six  dollars. 

THIS  was  a  suit  instituted  by  the  plaintiff  in  error  in  the  San- 
gamon Circuit  Court  upon  the  following  note : 
"  30.75 

Four  days  after  date,  we  or  either  of  us,  promise  to  pay 
P.  C.  Latham  thirty  dollars  and  seventy-five  cents,  with  three 
dollars  per  month  interest  after  due  until  paid,  for  value  re- 
ceived. Sept.  18,  1832. 

his 
JAS.  ^  GAKDKEK, 

mark 
EPHM.  DARLING." 

See  16  111.  108. 

198 


DECEMBEK  TEEM,  1835.  203 


Latham  v.  Darlinaf. 


The  cause  was  tried  at  the  October  term,  1835,  before  the 
Hon.  Thomas  Ford,  and  a  judgment  rendered  for  the  plaintiff 
in  error,  for  $63.96  and  costs.  The  court  below  decided  that 
the  note  drew  interest  at  the  rate  of  three  dollars  per  month  for 
$100.  The  plaiiiLiii'  executed  to  the  opinion  of  the  Court. 

J.  T.  STCTART  arid  J.  B.  THOMAS,  for  the  plaintiff  in  error. 
C.  WALKEB,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  trespass  on  the  case  on.  promises.  The 
only  point  made  and  submitted  to  the  Court  for  its  decision  is 
on  the  import  of  the  words  used  in  the  note  on  which  the  action 
is  founded,  in  relation  to  the  interest  which  the  makers  should 
.pay  on  the  amount  of  the  note.  These  words  are,  "  with  three 
dollars  per  month  interest  after  due  until  paid."  It  is  conceived 
that  there  is  no  ambiguity  in  this  language,  and  that  the  words 
declare  that  the  rate  of  interest  shall  be  three  dollars  for  each 
and  every  month  that  the  note  shall  remain  unpaid,  after  it 
shall  have  become  due. 

This  would  be  clearly  thirty-six  dollars  per  annum  for  the 
non-payment  of  the  amount  promised  to  be  paid  by  the  note  and 
not  three  per  centum  per  month,  or  at  the  rate  of  three  dollars 
per  month  for  the  use  of  one  hundred  dollars  for  that 
time.     The  *rate  of  interest  is  doubtless  enormous,  but     [*204] 
that  can  be  no  reason  whatever  for  changing  the  terms 
and  legal  effect  of  a  contract  which  the  parties  have  entered 
into. 

The  construction  put  on  the  contract  in  the  Circuit  Court,  as 
to  the  rate  of  interest,  was  evidently  erroneous,  and  could  not, 
it  is  conceived,  comport  with  the  meaning  and  obvious  import 
of  the  language  used. 

The  clerk  of  this  Court  is  directed  to  modify  the  judgment 
of  the  Circuit  Court,  by  entering  judgment  for  the  amount  of 
the  note,  with  the  interest  due  thereon,  from  the  day  the  note 
became  due  and  payable,  computing  such  interest  at  and  after 
the  rate  of  three  dollars  per  month  for  each  month,  and  at  the 
same  rate  for  a  fraction  of  a  month,  until  the  day  of  the  rendi- 
tion of  the  judgment  in  the  Circuit  Court  with  costs. 

Judgment  modified. 

199 


204  VANDALIA. 


White  v.  Hight. 


JACOB  WHITE,  plaintiff  iu  error,  v.  GEORGE  W.  HIGHT, 
defendant  in  error. 

Error  to  Adams. 

STATUTE  OF  LIMITATIONS.— Non-residents  are  exempted  from  the  operation 
of  the  statute  of  limitations. 

The  limitation  of  sixteen  years  in  the  statute  of  limitations,  only  applies 
to  actions  of  debt  and  covenant,  and  to  actions  of  awards. 

THIS  cause  was  tried  at  the  November  term,  1835,  of  the 
Adams  Circuit  Court  before  the  HOD.  .Richard  M.  Young. 

A.  WILLIAMS,  for  the  plaintiff  in  error. 

O.  H.  BROWNING,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  is  an  action  of  assumpsit  commenced  by  White  against 
Hight  in  the  Adams  Circuit  Court.  The  declaration  contains 
two  counts.  The  first  count  is  on  a  promissory  note,  dated  the 
26th  day  of  January,  1819,  for  $403.  The  second  count  is  on 
a  written  agreement,  dated  1st  October,  1824,  by  which  the  de- 
fendant promised  to  pay  the  plaintiff  $486.92,  being  the  balance 
due  the  plaintiff  on  a  note  which  he  had  held  against  the  de- 
fendant, but  which  note  had  been  lost. 

The  defendant  pleaded  three  pleas,  to  wit,  non  assumpsit,  non 
assumpsit  within  five  years,  as  to  both  counts,  and  non  assumpsit 
within  sixteen  years,  as  to  the  second  count.  To  the  second  and 
third  pleas,  the  plaintiff  replied,  "  That  at  the  time 
[*205]  when  the  *said  several  causes  of  action  and  each 
of  them  did  accrue  to  him,  he,  the  said  plaint- 
iff, was  in  parts  beyond  the  limits  of  this  State,  to  wit,  in 
the  State  of  Ohio;  and  has  ever  since  remained,  and  yet  is 
beyond  the  limits  of  this  State,  to  wit,  in  the  State  of  Ohio." 
To  which  replication  the  defendant  demurred  and  the  Circuit 
Court  sustained  the  demurrer,  and  gave  judgment  for  the 
defendant.  The  only  question  presented  in  this  case,  is, 
whether  the  "Act  for  the  Limitation  of  Actions,  and  for  avoid- 
ing vexatious  Law  Suits"  (R.  L.  441;  Gale's  Stat.  454,)  ap- 
proved February  10,  1827,  extends  to  non-resident  plaintiffs. 
By  the  first  section  of  the  act,  all  actions  upon  the  case,  which 
term  include  actions  of  assumpsit,  and  the  other  actions  there- 

CITED:  4  Gilm.  207.  See  Starr  &  C.  111.  Stat.  pp.  1556,  Ch.  83,  H  18, 
etc. 

200 


DECEMBEK  TEEM,  1835.  205 

White  v.  Eight. 

in  enumerated,  shall  be  commenced  within  five  years  next  after 
the  cause  of  action  shall  have  accrued,  and  not  after.  The 
second,  third,  fourth  and  fifth  sections  limit  the  commence- 
ment of  the  several  actions  mentioned  in  these  sections,  to  the 
times  therein  contained.  The  6th  section  applies  to  the  right 
of  entry  into  land,  and  limits  the  time  within  which  such 
entry  may  be  made.  The  7th  section  is  in  these  words,  to  wit : 
"  That  every  real,  possessory,  ancestral,  or  mixed  action,  or 
writ  of  right,  brought  for  the  recovery  of  any  lands,  tene- 
ments, or  hereditaments,  shall  be  brought  within  twenty  years 
next  after  the  right  or  title  thereto,  or  cause  of  such  action 
accrued,  and  not  after :  Provided,  that  in  all  the  foregoing 
cases  in  this  act  mentioned,  where  the  person,  or  persons  who 
shall  have  right  of  entry,  title,  or  cause  of  action,  is,  are,  or- 
shall  be,  at  the  time  of  such  right  of  entry,  title,  or  cause  of 
action,  under  the  age  of  twenty-one  years,  insane,  beyond  the 
limits  of  this  State,  or  feme  covert,  such  person  or  persons  may 
make  such  entry,  or  institute  such  action,  so  that  the  same  be 
done  within  such  time  as  is  within  the  different  sections 
of  this  act  limited,  after  his  or  her  becoming  of  full  age,  sane, 
jreme  sole,  or  coming  within  this  State."  The  language  used 
in  the  seventh  section  is  too  plain  and  unequivocal  to  admit  of 
a  doubt  that  the  legislature  intended  to  exempt  infants,  insane 
persons,  feme  coverts,  and  non-residents,  from  the  operation 
of  the  act,  until  the  removal  of  their  respective  disabilities, 
and  the  legislature  are  not  without  precedents  of  similar  ex- 
ceptions in  other  countries.  The  English  statute  of  limitations 
contains  a  similar  provision,  and  several  of  the  States  have 
copied  it  into  their  statutes. 

The  plea  that  the  cause  of  action  mentioned  in  the  first 
count,  did  not  accrue  within  sixteen  years,  is  incorrectly 
pleaded.  The  limitation  of  sixteen  years  only  applies  to 
actions  of  debt  and  covenant,  and  to  actions  upon  awards. 

The  Court  therefore  are  clearly  of  opinion  that  the  Court 
below  erred  in  sustaining  the  demurrer  to  the  plaint- 
iff's  ^replication.     The  judgmentl  is   reversed  with     [*206] 
costs,  and  the  cause  remanded  to  the  Adams  Circuit 
Court,  with  directions  to  overrule  the  demurrer,  and  proceed 
in  the  cause  consistently  with  this  opinion. 

Judgment  reversed. 

WILSON  Ch.  J..  did  not  sit  in  this  cause. 

201 


206  YANDALIA. 


Felt  v.  Williams. 


CYRUS  FELT,  plaintiff  in  error,  v.  WESLEY  WILLIAMS, 
defendant  in  error. 

Error  to  Hancock. 

DETINUR—PLEADING.  The  action  of  detinue  is  an  unusual  action,  and 
the  books  furnish  but  few  rules  of  evidence  applicable  to  it.  Great  cer- 
tainty and  accuracy  in  the  description  of  the  things  demanded,  are  still 
required  in  detinue. 

A  declaration  in  detinue  for  "a  red  cow  with  a  white|face,"  is  not  supported 
by  proof  that  "  the  cow  was  a  yellow  or  sorrel  cow." 

THIS  cause  was  tried  at  the  April  term,  1835,  of  the  Han- 
cock Circuit  Court,  before  the  Hon.  Richard  M.  Young,  and  a 
judgment  was  rendered  for  the  plaintiff  in  the  Court  below, 
the  defendant  in  error. 

C.  WALKER,  for  the  plaintiff  in  error. 

A.  WILLIAMS  and  O.  H.  BKOWNING,  for  the  defendant  in 
error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  detinue  brought  in  the  Hancock  Circuit 
Court  by  Williams  against  Felt,  to  recover  a  large  red  cow 
with  a  white  face.  On  the  trial  of  the  cause,  the  plaintiff  in- 
troduced a  witness  to  prove  property  in  the  cow,  who  testified 
that  the  cow  claimed  by  the  plaintiff  "  was  not  a  red  cow,  nor 
was  she  of  such  a  color  which  he  had  ever  heard  anybody  call 
red."  The  witness  further  stated  that  "  the  cow  was  a  yellow 
or  son-el  cow."  This  was  all  the  testimony  that  the  plaintiff 
gave  respecting  the  description  of  the  cow.  The  defendant 
below  moved  the  Court  to  instruct  the  jury  to  find  a  verdict 
for  the  defendant,  as  in  case  of  a  nonsuit,  because 
[*207]  of  a  discrepancy  between  the  *proof  and  the  dec- 
laration, in  respect  to  the  color  of  the  cow.  This  in- 
struction the  Court  refused  to  give,  and  this  refusal  is  as- 
signed for  error. 

The  action  of  detinue  is  an  unusual  action  and  the  books  fur- 
nish but  few  rules  of  evidence  applicable^  it.  It  is,  however, 
laid  down  "  That  great  certainty  and  accuracy  in  the  descrip- 
tion of  the  things  demanded  is  still  required  in  detinue,  be- 
cause the  plaintiff  may  desire  to  recover  the  specific  things 

See  13  111.  602,  35  111.  507,  567. 


DECEMBER  TERM,  1835.  207 

Stacker  et  al.  v .  Hewitt. 

themselves,  which  only  can  be  done  in  this  action."  (2  Saimcl. 
746.)  The  same  author  says  that  less  certainty  of  description 
of  the  goods  in  dispute  is  required  in  trespass  and  trover  be- 
cause in  these  actions  the  plaintiff  only  recovers  damages,  but 
in  the  action  of  detinue  the  judgment  is  to  recover  the  identi- 
cal thing  itself  or  the  value,  if  it  is  not  restored.  There  is  no 
propriety  in  requiring  great  certainty  and  accuracy  in  the  de- 
scription of  goods  in  this  form  of  action,  if  the  law  does  not 
also  require  that  the  proof  shall  correspond  with  equal  cer- 
tainty to  the  description  of  the  goods  given  in  the  declaration. 
In  this  case  there  is  such  a  manifest  variance  between  the  cow 
described  in  the  declaration  and  the  one  described  by  the  wit- 
ness that  the  Court  ought  to  have  rejected  the  testimony  as 
not  tending  to  prove  the  issue  between  the  parties.  As  all 
the  proof  on  the  subject  of  the  identity  of  the  cow  is  given  in 
the  bill  of  exceptions,  and  that  being  adjudged  by  this  Court 
insufficient  to  support  the  plaintiff's  action,  it  is  unnecessary  to 
remand  the  cause,  this  Court  having  power  to  give  such  judg- 
ment as  the  Court  below  ought  to  have  given. 

The  judgment,  therefore,  is  reversed  with  costs  and  a  judg- 
ment as  in  case  of  a  nonsuit  rendered. 

Judgment  reversed. 


JOHN  STACKER,  SAMUEL  STACKER  and  THOMAS  T. 
WATSON,  plaintiffs  in  error,  v.  TYLER  D.  HEWITT, 
defendant  in  error. 

Error  to  Gallatin. 

PROMISSORY  NOTE — CONSIDERATION. — A  note  expressing  on  its  face  to 
have  been  given  for  value  received,  imports  a  sufficient  consideration,  and 
leaves  it  open  to  be  impeached  by  the  defendant. 

A  note  is  prima  facie  evidence  of  a  consideration,  although  it  does  not  ex- 
press on  its  face  that  it  is  given  for  value  received;  and  when  a  want  or  fail- 
ure of  consideration  is  relied  on,  it  must  be  pleaded  and  proved  by  the  party 
alleging  it. 

The  case  of  Poole  v.  Vanlandingham,  Breese,  22,  is  overruled. 

THIS  cause  was  tried  at  the  October  term,  1835,  of 
the  *Gallatin  Circuit  Court,  before  the  Hon.   Justin     [*208] 
Harlan,  and  a  judgment  rendered  for  the  defendant 
in  the  Court  below,  upon  which  the  plaintiffs  sued  out  the 
writ  of  error  herein. 

CITED:  27  111.  842:  49  111.  420;  64  111.  839.  See  2  Scam.  577;  Starr  & 
C.  111.  Stat.  1661,  Ch.  98,  f  9,  notes. 

203 


•j  -  Y  AND  ALIA. 


Stacker  et  al.  v.  Hewitt. 


H.  EDDY,  for  the  plaintiffs  in  error,  cited  the  following  au- 
thorities : 

R.  L.  490  §  12  (Gale's  Stat.  531) ;  3  Bibb,  317 ;  1  Pirtle's 
Dig.  146,  §  11,  16 ;  do.  148,  §  27;  do.  154,  §  69  ;  4  Monroe, 
531  ;  1  Marsh.  332  ;  2  J.  J.  Marsh.  420;  3  J.  J.  Marsh.  167. 

JESSE  J.  EOBINSON,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  debt  on  a  note  of  hand.  The  declara- 
tion contains  the  usual  count  on  a  sealed  instrument.  The  de- 
fendant pleaded  that  the  note  was  given  without  any  consider- 
ation whatever. 

The  plaintiffs  took  issue  on  this  plea  and  submitted  both  law 
and  fact  to  the  Court  for  trial.  On  the  trial,  as  shown  by  the 
bill  of  exceptions,  the  plaintiffs  offered  in  evidence  the  note 
which  was  under  seal  and  expressed  to  have  been  given  for 
value  received.  To  this  evidence  the  defendant  demurred  ore 
tenus  and  the  Circuit  Court  adjudged  the  proof  insufficient, 
and  there  being  no  other  evidence  offered,  gave  judgment  for 
the  defendant. 

By  the  12th  section  of  the  practice  act  it  is  provided  "That 
no  person  shall  be  permitted  to  deny  on  the  trial  the  execu- 
tion of  any  instrument  in  writing,  whether  sealed  or  not,  upon 
which  action  may  have  been  brought,  unless  the  person  so 
denying  the  same  shall  verify  his  plea  by  affidavit."  (R.  L. 
490 ;  Gale's  Stat.  531.)  This  provision  fo  the  law  made  the 
mere  production  of  the  note  evidence  without  proof  of  its  ex- 
ecution ;  and,  indeed,  without  the  statute  it  was  already  ad- 
mitted by  the  defendant's  plea  of  want  of  consideration. 

It  is  equally  certain  that  the  production  of  evidence  to  sup- 
port the  plea  of  no  consideration,  being  an  affirmative  plea, 
devolved  on  the  defendant.  There  being  no  evidence  in  sup- 
port of  it  the  Court  evidently  erred  in  rendering  judgment 
for  the  defendant.  The  position  assumed  by  counsel,  that  the 
plea  was  the  affirmation  of  the  non-existence  of  a  fact  not  sus- 
ceptible of  proof  by  the  defendant,  and  that  therefore  the 
onus  probandi  to  show  the  actual  consideration  of  the  note 
ought  to  devolve  on  the  plaintiffs,  is  not,  we  apprehend,  by  any 
means  correct.  The  entire  absence  of  a  consideration  for  the 
execution  of  the  note  would  be  a  fact  as  completely  within  the 
means  of  proof  by  the  defendant  as  the  plaintiffs'  ability  to 
show  a  consideration  therefor.  By  the  rule  of  the  com- 
[*209]  mon  law,  the  note  being  under  seal  ^imported  a  val- 
uab'e  consideration,  and  no  inquiry  could  be  had  in  re- 
lation thereto.  So  a  note  not  under  seal,  expressing  on  its  face 


DECEMBEK  TERM,  1835.  209 

Whitney  v .  Cochran  et  al. 

to  have  been  given  for  value  received,  imports  a  sufficient 
consideration  and  leaves  it  open  to  be  impeached  by  the  de- 
fendant. 

By  the  statute  of  this  State  relative  to  promissory  notes, 
bonds,  due  bills,  and  other  instruments  in  writing,  making  them 
assignable,  approved  15th  Feb.  1827,  (JR.  L.  482;  Gale's  Stat. 
525,)  it  is  declared  that  such  notes,  bonds,  due  bills,  and  other 
instruments  in  writing  whereby  the  maker  agrees  to  pay  any 
sum  of  money  or  article  of  personal  property,  or  of  money  in 
personal  property,  shall  be  taken  to  be  due  and  payable  to 
the  person  to  whom  the  same  is  made.  This  act  of  itself, 
then,  would  make  any  instrument,  coming  within  the  de- 
scription named,  prima  fade  evidence,  although  it  did  not 
express  on  its  face  to  have  been  given  for  value  received, 
and  render  the  proof  by  the  plaintiff  of  a  consideration  un- 
necessary. But  it  is  considered  well  settled,  and  a  principle 
admitting  of  no  doubt,  that  the  defendant  by  his  plea  was 
bound  to  sustain,  by  proof,  the  existence  of  the  fact  averred  in 
his  plea,  and  upon  which  the  plaintiffs  had  taken  issue.  This 
rule  is  laid  down  in  a  recent  case  decided  in  a  sister  State, 
Mitchell  v.  Sheldon  et  al.  (2  Blackf.  183.)  In  that  case,  which 
is  directly  analogous  to  the  present,  the  Court  say,  the  note  is 
prima  facie  evidence  of  a  consideration,  and  when  a  want  of 
or  a  failure  of  consideration  is  relied  on,  it  must  be  pleaded 
and  proved. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  clerk 
of  this  Court  is  directed  to  enter  judgment  for  the  plaintiffs  in 
this  Court,  for  the  amount  of  the  note,  with  interest  thereon 
at  the  rate  of  six  per  cent,  damages  from  the  25th  day  of  May, 
1834,  until  the  rendition  of  the  judgment  in  this  Court,  with 
costs  of  suit. 

Judgment  reversed. 


JOHN  DOE,  ex  dem.  LUTHER  WHITNEY,  plaintiff  in 
error,  v.  JOHN  COCHRAN  and  CYRUS  FELT,  defendants 
in  error. 

Error  to  Hancock. 

SALE  OF  LAND — PABOL  CONTRACT — POSSESSION. — In  the  case  of  a  parol 
purchase  of  land,  if  the  vendee  enter  into  possession  and  afterward  refuse 
to  affirm  the  contract,  he  would  be  liable  to  the  vendor  for  the  use  and  occu- 
pation of  the  land,  and  could  not  dispute  his  title  by  setting  up  an  outstand- 
ing title  in  a  third  person. 

CITED:  74  111.  143.  See  ante  60;  4  Scam.  90;  13  111.  241;  39  111.  398. 
See  Starr  &  C.,  111.  Stat.  1192,  Ch.  59,  1  2,  notea. 

205 


210  VANDALIA. 


Whitney  v .  Cochran  et  al. 


[*210J        *A  parol  contract  for  the  purchase  of  land  is  not  absolutely  ; 
but  only  voidable  under  the  statute  of  frauds. 

THIS  cause  was  tried  at  the  September  term,  1835,  of  the 
Hancock  Circuit  Court,  before  the  Hon.  Richard  M.  Young. 
Judgment  was  rendered  for  the  defendants,  and  the  plaintiff 
brought  the  cause  to  this  Court. 

C.  WALKER  and  J.  W.  WHITNEY,  for  the  plaintiff  in  error. 
A.  WILLIAMS,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  ejectment.  On  the  trial  of  the  cause 
the  plaintiff  offered  in  evidence  a  certificate  of  the  Register  of 
the  United  States  Land  Office  at  Springfield,  showing  the  pur- 
chase of  the  tract  of  land  in  controversy,  and  also  a  deed  for 
the  same,  which,  owing  to  an  alleged  informality  in  the  certifi- 
cate of  acknowledgment  of  the  proof  of  the  deed,  was  rejected 
as  evidence  in  the  cause.  The  plaintiff  then  offered  to  prove  a 
tenancy  on  the  part  of  the  defendants  under  the  lessor  of  the 
plaintiff,  and  as  an  estoppel  on  the  part  of  the  defendants,  to 
dispute  the  plaintiff's  title,  and  offered  to  prove  that  the  de- 
fendant, Cochran,  purchased  the  land  described  in  the  decla- 
ration, by  parol,  from  the  lessor  of  the  plaintiff,  who,  in  like  man- 
ner, by  yarol,  had  sold  the  same  to  the  defendant,  Felt,  and 
that  the  defendants  had  respectively  taken  possession  of  the 
land  under  said  purchases  before  the  date  of  the  demise  in 
plaintiff's  declaration ;  to  which  the  defendants  objected  ;  and 
the  Court  sustained  the  objection,  deciding  that  a  parol  sale  of 
land  was  void,  and  could  not  create  a  tenancy  ;  to  which  opin- 
ion the  plaintiff  by  his  counsel  excepted. 

The  decision  of  the  Circuit  Court,  that  a  parol  purchase  of 
land  was  absolutely  void,  is  evidently  founded  on  a  misconcep- 
tion of  the  statute  of  frauds.  Such  a  contract  is  only  voidable, 
under  that  statute,  and  not  void  in  itself.  The  parties  to  a  pa- 
rol contract  for  the  sale  of  land  might  surely  consummate  it  at 
any  time,  and  unless  one  of  them  chose  to  interpose  the  stat- 
ute, as  a  legal  defense  to  an  action  for  a  refusal  to  consummate 
such  an  agreement,  it  would  evidently  be  obligatory.  The  Court 
ought  also  to  have  admitted  the  parol  evidence  of  the  contract 
to  establish  the  relation  of  landlord  and  tenant,  because  it  can 
not,  we  think,  be  denied,  that  in  the  case  of  a  parol  purchase 
of  land,  if  the  vendee  enters  into  possession  and  refuses  after- 
ward to  affirm  the  contract,  he  would  be  liable  to  the  vendor 
for  use  and  occupation,  and  could  not  dispute  his  title  by  set- 
ting up  an  outstanding  title  in  a  third  person. 

206 


DECEMBEK  TERM,  1835.  210 

Morton  v.  Gateley. 

The  judgment  of  the  Circuit  Court  is  reversed,  and 
the  cause  *remanded  for  further  proceedings  not  in-     [*211] 
consistent  with  this  opinion. 

Judgment  reversed. 

WILSON,    Ch.  J.,  was  not  present  at  the  argument  of  this 
cause. 


CHARLES  S.  MORTON,  appellant,  v.  JOHN  GATELEY, 
appellee. 

Appeal  from  Coles. 

INSTRUCTION  TO  JURY. — The  refusal  of  the  Circuit  Court  to  instruct  the 
jury  that  there  was  no  evidence  of  a  fact  which  the  testimony  tended  to 
prove,  can  not  be  assigned  for  error. 

PARTNERSHIP. — It  may  be  doubted  whether  an  agreement  between  two 
or  more  individuals,  to  do  a  particular  piece  of  labor  for  which  each  is  to 
receive  his  aliquot  part  of  the  compensation  for  the  work,  constitutes  them 
partners. 

THIS  cause  was  heard  in  the  Coles  Circuit  Court,  at  the 
April  term,  1835,  before  the  Hon.  Justin  Harlan  and  a  jury, 
and  a  judgment  rendered  against  Morton  for  $47.50  and  costs 
of  suit,  from  which  he  appealed  to  this  Court. 

J.  PEARSON,  for  the  appellant. 
O.  B.  FICKLIN,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  originally  instituted  before  a  justice  of 
the  peace,  and  taken  by  appeal  to  the  Circuit  Court  of  Coles 
county.  The  plaintiff's  claim,  before  the  Circuit  Court,  con- 
sisted of  various  items  contained  in  his  account,  and  the  de- 
fendant presented  an  account  of  various  items  of  set-off  ;  and 
among  others,  one  for  money  had  and  received  by  the  plaint- 
iff, for  work  and  labor  rendered  jointly  by  the  defendant  and 
plaintiff  and  a  third  person,  in  the  construction  of  a  building, 
the  one  third  part  of  the  compensation  for  such  labor  being 
due  and  payable  to  the  defendant ;  but  which  the  plaintiff  had 
received  of  the  person  from  whom  it  was  payable,  without 
the  authority  or  consent  of  the  defendant,  as  appears  from  the 
evidence  in  the  bill  of  exceptions.  This  evidence  was  objected 
to  by  the  plaintiff,  and  the  counsel  for  the  plaintiff  asked  the 
Court  to  instruct  the  jury,  that  there  was  no  evidence  before 
it  to  support  the  charge.  This  the  Circuit  Court  refused  to 

See  15  111.  32. 

207 


211  YANDALIA. 


Hurry  v.  'Crocker. 


do,  but  left  it  to  the  jury  to  determine  whether  these  parties 
were  in  partnership,  and  if  they  were,  whether  there  had 
been  an  adjustment  of  their  partnership  accounts,  and  a  prom- 
ise on  the  part  of  Morton  to  pay  Gateley,  the  defendant,  the 
amount  received  by  him. 

The  refusal  of  the  Court  to  give  the  instructions  asked,  and 
the  giving  the   instructions  as  stated,  are  now  assigned  for 

error. 

[*212]  *On  both  points  the  Circuit  Court  was  correct.  It 
could  not  properly  instruct  the  jury  that  there  was  no 
evidence  to  support  the  charge  for  money  had  and  received, 
in  direct  opposition  to  the  testimony  itself.  We  imagine  the 
instructions  prayed  for  were  based  on  a  supposed  partnership 
existing  between  the  plaintiff,  defendant,  and  the  third  person, 
to  do  the  labor  jointly ;  but  the  evidence  showed  that  each 
party  had  received  his  separate  share,  except  the  defendant, 
whose  share  had  been  set  apart,  and  had  been  obtained  on  a 
promise  to  indemnify  the  debtor,  if.  the  payment  was  not  rati- 
fied by  the  defendant.  But  it  may  be  doubted  whether  an 
agreement  between  two  or  more  individuals  to  do  a  particular 
piece  of  labor,  for  which  each  is  to  receive  his  aliquot  part  of 
the  compensation  for  the  work,  can  constitute  them  partners. 
The  instructions  given  by  the  Circuit  Court  wrent  farther  than 
the  case  required,  and  were  distinctly  favorable  to  the  plaintiff, 
under  the  view  taken  by  the  Court,  because  it  was  left  to  the 
jury  to  determine  from  the  evidence  whether  there  was  a 
partnership  proven,  and  whether  or  not  there  had  been  an  ad- 
justment of  their  partnership  transactions,  and  a  promise  by 
the  plaintiff  to  pay  the  defendant.  In  every  aspect  in  which 
this  case  can  be  viewed,  it  can  not  be  perceived  that  there  was 
any  error  in  the  refusal  to  give  the  instructions  asked,  nor  in 
those  which  were  given. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


WILLIAM     MUREY,    plaintiff    in    error,    v.    JOSIAH 
CROCKER,  defendant  in  error. 


Error  to  St.  Glair. 


USURY— PLEADING.—  A  defendant  can  not  avail  himself  of  the  statute 
against  usury,  unless  the  same  be  pleaded,  and  an  application  be  made  to 
the  Court,  where  the  cause  is  pending,  for  the  benefit  of  the  act. 


208 


DECEMBER  TERM,  1835.  212 

Murry  v.  Crocker. 

J.  W.  "WHITNEY,  for  the  plaintiff  in  error. 
A.  COWLES,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  instituted  originally  before  a  justice  of 
the  peace,  and  taken  by  appeal  to  the  Circuit  Court. 

The  only  question  presented  by  the  pleadings  in  this  case, 
arises  on  the  note,  which  contained  a  provision  that  if  the 
amount  was  not  paid  when  it  became  due,  then  interest  was  to  be 
paid  therefor  at  the  rate  of  twenty  per  cent,  until  paid. 
The  Circuit  *Court  rendered  a  judgment  on  the  note  [*213] 
with  interest  at  the  rate  of  six  per  cent,  per  annum, 
and  to  this  judgment  the  defendant  objects,  alleging  that  the 
contract  was  an  usurious  one.  The  pleadings  do  not  show 
that  the  question  of  usury  was  ever  raised  in  the  Circuit  Court 
or  before  the  justice.  The  statute  relative  to  usury  provides 
that  if  it  shall  appear  to  the  Court  before  which  the  action 
shall  be  tried,  by  the  pleadings  in  the  case,  and  on  application 
of  the  defendant,  that  a  greater  rate  of  interest  shall  have 
been  reserved  or  taken  than  is  reserved  by  the  act,  the  de- 
fendant shall  recover  his  full  costs,  and  the  plaintiff  shall  for- 
feit threefold  the  amount  of  the  whole  interest  reserved;  and 
the  plaintiff  shall  have  judgment  only  for  the  balance.  (R.  L. 
349 ;  Gale's  Stat.  343.) ' 

Now,  in  this  case,  it  neither  appears  by  the  pleadings  in  the 
case  that  the  question  of  usury  was  raised,  nor  that  an  appli- 
cation contemplated  by  the  act  was  ever  made  ;  consequently, 
this  Court  can  not  consider  the  point  in  any  way  before  the 
Court  for  its  adjudication.  Why  tho  Circuit  Court  changed 
the  rate  of  interest  we  can  not  coFect  from  the  record,  but  as 
the  reduction  of  the  rate  of  interest  was  in  favor  of  the  plaint- 
iff in  error,  he  cannot  surely  object  to  the  judgment  below  for 
that  cause. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

VOL.  1-14  209 


213  YANDALIA. 


Morton  v.  Bailey  et  al. 


CHARLES  S.  MORTON,  appellant,  v.  GIDEON  S.  BAILEY, 
and  JULIA  BAILEY,  his  wife,  administratrix  of  James 
J.  Jones,  deceased,  appellees. 

Appeal  from  Coles. 

SET-OFF. — A  defendant  is  not  hound  to  set  off  his  debt  against  the  plaint- 
iff's demand,  except  in  suits  before  a  justice  of  the  peace." 

ADMINISTRATOR. — An  administrator  is  not  bound  upon  the  exhibition  by 
a  creditor  of  his  claim  against  the  estate  of  the  intestate,  to  set  off  any  debt 
or  demand  such  estate  may  have  against  such  creditor;  and  his  failing  to  do 
so  will  not  bar  such  debt  or  demand. 

DEFAULT — EFFECT  OF. — A  defendant  by  suffering  judgment  to  go  by  de- 
fault is  out  of  court,  and  has  no  right  to  except  to  testimony.  He  is,  how- 
ever, permitted  to  cross-examine  the  witnesses,  but  he  can  not  introduce  testi- 
mony, or  make  a  defense  to  the  action.  Should  improper  testimony  or  wrong 
instructions  be  given,  the  proper  course  is  to  apply  to  the  court  to  set  aside 
the  inquisition,  and  grant  a  new  inquest. 

STATUTORY  REMEDY  CUMULATIVE. — The  remedy  given  by  statute,  to  collect 
fees  by  making  out  a  fee  bill  and  delivering  it  to  an  officer,  is  a  cumulative 
remedy,  but  it  does  not  take  away  the  common  law  remedy  by  suit. 

THIS  cause  was  tried  at  the  November  special  term  of  the 
Coles  Circuit  Court,  1835,  before  the  Hon.  Alex.  F. 

[*214]  Grant,  and  *a  judgment  rendered  against  Morton  for 
$84.55  and  costs,  from  which  he  appealed  to  this 

Court. 

J.  PEARSON,  for  the  appellant. 
O.  B.  FICKLIN,  for  the  appellees. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

CITED:  Right  to  waive  set-off  and  bring  cross-action.  86  Id.  272:  105  111. 
S86. 

Inquest  of  damages,  koto  remeiced.  16  111.  527.  Rights  of  defend- 
ant. Criticised  16  III.  531,  2. 

Judgment  on  demurrer  for  default  of  plea.  79  111.  253.  See  Starr  & 
C.  111.  Stat.  1807,  Ch.110,  1  41  and  notes. 

Set-off.  86  111.  272;  105  111.  586.  See  Starr  &  C.  111.  Stat.  Ch.  3,  H  66, 
218  (in  actions  by  and  against  administrators);  Id.  1448,  Ch.  79,  If  49  (in 
actions  before  justice  of  peace);  Id.  1785,  Ch.- 110,  H  19  (in  actions  on  sealed 
instruments,  judgments,  etc.).  See  also  notes  in  same  work,  pages  1791- 
1794. 

*  Failure  to  set  off  counter  demand — Whether  subsequent  action  barred. 

"  The  statute  allows  a  set-off  to  be  pleaded  in  the  Circuit  Court,  but  it  is 
not  compulsory.  A  defendant  may  decline  to  plead  and  prove  his  set-off, 
and  after  judgment  sue  the  plaintiff  for  his  demand  if  he  desires  to  do  so." 
Quick  v.  Lemon,  105  111.  586;  Chicago  D.  &  V.  R.R.  Co.  v.  Field,  86  III.  272. 

This  is  in  accordance  with  the  general  rule  that  the  defense  of  set-off  is 
one  which  a  defendant  may  use  or  not  at  his  pleasure.     If  he  does  not  use 
it  his  right  to  establish  his  claim  by  a  separate  action  remains.    2  Parse  is 
on  Contracts,  741. 
210 


DECEMBER  TERM,  1835.  214 

Morton  v.  Bailey  et  al. 

This  was  an  action  of  assumpsit  commenced  in  the  Circuit 
Court  of  Coles  countj,  by  Bailey  and  wife,  in  her  right  as  ad- 
ministratrix of  Jones,  deceased,  against  Morton.  The  declara- 
tion contains  several  counts.  The  defendant  pleaded  in  bar  of 
the  suit,  that  after  Mrs.  Bailey  was  appointed  administratrix, 
he,  said  Morton,  exhibited  before  the  Judge  of  Probate  of 
Coles  county,  in  pursuance  of  notice  given  by  said  administra- 
trix, his  claim  against  the  estate  of  said  Jones,  consisting  of 
charges  for  work  and  labor  done  and  performed,  goods  sold, 
money  lent  and  had  and  received  by  said  Jones  in  his  lifetime  ; 
that  the  judge  of  probate  gave  judgment  for  Morton  on 
the  amount  or  claim  thus  exhibited,  and  that  plaintiffs  below 
might  have  set  off  the  demands  mentioned  in  the  declaration 
against  the  claim  thus  exhibited  by  Morton,  but  the  plaintiffs 
neglected  to  make  such  set-off,  whereby  the  plaintiffs  are 
barred,  etc. 

To  this  plea  the  plaintiffs  demurred,  and  the  Court  sustained 
the  demurrer.  The  defendant  not  farther  answering,  judg- 
ment was  given  by  default,  and  a  jury  called  and  sworn  to  in- 
quire of  damages.  On  the  taking  of  the  inquest  in  the  Circuit 
Court,  the  defendant  excepted  to  several  portions  of  the  testi- 
mony offered  by  the  plaintiffs. 

Two  questions  are  presented  for  the  consideration  of  this 
Court,  to  wit :  1,  Was  the  administratrix  barred  by  the  pro- 
ceedings before  the  judge  of  probate  ?  and  2,  Can  the  defend- 
ant, on  the  taking  of  an  inquest  by  default,  except  to  the  opin- 
ion of  the  Court  in  receiving  or  rejecting  testimony  ? 

At  common  law  a  defendant  could  not  set  off  his  demand 
against  the  plaintiff's  debt,  and  our  statute  of  set-off  is  permis- 

Where,  however,  the  matter  which  might  be  set  up  in  defense  is  of  such 
a  nature  that,  if  it  were  to  be  considered  in  a  subsequent  suit  it  would 
involve  an  inquiry  into  the  merits  of  the  former  judgment,  it  would  seem 
that  upon  the  principle  of  "res  adjudicata"  the  defendant  should  be 
barred  by  his  failure  to  set  up  such  matter  of  defense  in  the  original  action. 
See  Gales  v.  Preston,  41  N.  Y.  113,  (wherein  it  was  held  that  a  judgment 
in  favor  of  a  surgeon  for  professional  services  is  a  bar  to  an  action  by  the 
defendant  against  him  for  malpractice  in  performing  such  services); 
Davis  r.  Tallcot,  12  N.  Y.  184;  Globe  v.  Dillon.  86  Ind.  327;  Haynes  v.  Ord- 
way,  58  N.  H.  167:  Newetty  r.  Naylor,  63  How.  Pr.  (N.  Y.)  387;  Caylus  v. 
N.'Y.  K.  &  S.  R.  R.  Co..  76  N.  Y.  609. 

This  precise  question  does  not  seem  to  have  arisen  in  Illinois.  See  How- 
ell  v.  Goodrich,  69  111.  558. 

In  Ressequie  v.  Byers,  52  Wis.  650,  after  elaborate  argument  the  Court 
refused  to  follow  Gates  v.  Preston,  above  cited.  See  also  Kezar  v.  Elkins, 
52  Vt.  119. 

The  subject  is  fully  discussed  in  Bigelow  on  Estoppel,  3d  Ed.  118  et  sea., 
•where  the  author  reaches  a  conclusion  adverse  to  the  N.  Y.  decisions.  The 
i,-'gument  against  Ihes*  decisions  seems  based  upon  convenience  rather 
than  upon  principle.  The  authorities  are  fully  cited  in  the  last  named  work. 

211 


214  VANDALIA. 


The  People  v.  Mottey. 


nive,  but  not  compulsory.  According,  then,  to  the  general 
law  of  the  land,  a  party  defendant  is  not  bound  to  set  off  his 
debt  against  the  plaintiff's  demand,  except  in  suits  before  a 
justice  of  the  peace.  Is  there  any  provision  in  the  "Act rela- 
tive to  Wills  and  Testaments,  Executors  and  Administrators, 
and  the  Settlement  of  Estates"  and  the  several  acts  amenda- 
tory thereof,  requiring  administrators,  upon  the  exhibition  by 
a  creditor  of  his  claim  against  the  estate,  to  set  off  any  debt  or 
demand  such  estate  may  have  against  such  creditor?  The 
Court  have  looked  in  vain  for  any  such  provision  in  the  acts 
above  enumerated,  and  are  accordingly  of  opinion  that  the  ad- 
ministratrix was  not  barred  of  her  action  by  the  proceedings 

before  the  judge  of  probate. 

[*215]  *On  the  point  whether  the  defendant  on  the  execu- 
tion of  an  inquest,  can  take  a  bill  of  exceptions,  the 
Court  are  of  opinion  that  the  defendant  by  suffering  judg- 
ment to  go  by  default,  is  out  of  Court  and  has  no  right  to  ex- 
cept to  testimony.  The  defendant  is  permitted,  however,  to 
cross-examine  the  witnesses,  but  can  not  introduce  testimony, 
or  make  a  defense  to  the  action.  Should  improper  testimony 
or  wrong  instructions  be  given,  the  proper  course  is  to  apply 
to  the  Court  to  set  aside  the  inquisition,  and  grant  a  new  in- 
quest. 

The  counsel  for  the  plaintiff  urged,  on  the  argument,  that 
no  action  lies  by  an  officer  for  the  collection  of  fees  due  him 
as  a  clerk,  justice  of  the  peace  or  judge  of  probate.  This 
position  is  clearly  erroneous.  The  remedy  given  by  statute 
to  collect  fees  by  making  out  a  fee  bill  and  delivering  it  to  an 
officer,  is  a  cumulative  remedy,  but  does  not  take  away  the 
common  law  remedy  by  suit. 

The  judgment,  therefore,  must  be  affirmed  with  costs. 

Judgment  affirmed. 


THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS,  ex  relations 
CHARLES  R.  MATHENY,  appellants,  v.  MORDECAI 
MOBLEY,  appellee. 

Appeal  from  Sangamon. 

CLERKS  OK  COURTS— APPOINTMENT  OF — DURATION  OF  TERM.— The  fair 
interpretation  of  the  provision  of  the  Constitution  of  this  State,  that  "  The 
Supreme  Court,  or  a  majority  of  the  justices  thereof,  the  Circuit  Courts  or 
the  justices  thereof,  shall,  respectively,  appoint  their  own  clerks,"  is  that  the 

2  Scam.  153,  179,  97.  140,  147,  148. 
See  13  Pet.  230  ;  13  111.  66;  2  Scam.  79. 

212 


DECEMBER  TERM,  1835.  215 

The  People  «.  Mobley. 

Court,  in  contradistinction  to  a  personal  authority,  is  the  repository  of  the 
trust  conferred  by  the  Constitution,  and  that  whenever  a  clerk  has  been  ap- 
pointed, the  trust  is  thereby  executed,  and  can  not  be  resumed  or  again  ex- 
ercised until  a  vacancy  shall  occur  in  one  of  the  several  ways  provided  by  law. 

The  terms,  "  the  justices  thereof,11  are  used  only  to  confer  an  authority  to 
make  an  appointment  in  vacation,  as  well  as  in  term. 

The  Constitution  gives  to  the  Court  the  authority  to  appoint  its  clerk;  but 
when  thus  appointed,  it  fixes  no  limit  to  the  duration  of  his  office. 

A  clerk  of  the  Circuit  holds  his  office  under  the  Constitution  ad  libitum, 
until  the  legislature  shall  think  proper  to  prescribe  the  tenure  of  the  office. 
This  it  is  certainly  competent  for  the  legislature  to  do. 

A  judge  of  a  Circuit  Court  can  not  remove  a  clerk,  except  for  some  of  the 
causes  pointed  out  in  the  statute. 

The  office  of  Clerk  of  the  Circuit  Court  is  created  by  the  Constitution,  and 
its  duration  is  left  undefined;  and,  unless  its  tenure  be  limited  by  law,  it 
would  be  of  indefinite  duration. 

THIS  cause  was  tried  at  the  July  special  term,  1835,  of  the 
Sangamon  Circuit  Court,  before  the  Hon.  Richard  M.  Young. 

The  following  proceedings  were  had  in  the  Court  below : 

On  the  llth  day  of  July,  1835,  Stephen  A.  Douglas,  At- 
torney  for  the   People  of  the  State  of  Illinois,  came 
into  Court    and  filed    *the   affidavit  'of  Charles  R.     [*216] 
Matheny,  in  the  words  and  figures  following,  to  wit : 
"State  of  Illinois,  Sangamon  County,  set., 

Charles  R.  Matheny  states  on  oath,  that  heretofore,  and 
long  prior  to  the  fourth  day  of  May,  1835,  he  was  legally  and 
properly  appointed  clerk  of  the  Circuit  Court  of  Sangamon 
county,  by  the  Circuit  Court  thereof,  and  was  duly  sworn,  en- 
tered into  the  necessary  and  proper  official  bonds  required  by 
law  to  be  taken,  and  was  legally  possessed  and  exercised  the 
powers  of  said  office,  receiving  the  emoluments  and  enjoying 
the  immunities  and  privileges  appertaining  to  said  office,  from 
the  time  of  his  said  appointment  and  induction  therein  until 
the  4th  day  of  May,  1835  ;  that  from  and  after  his  said  in- 
vestment of  said  office,  he  never  abandoned  or  forfeited  the 
same,  nor  was  he  ever  removed  or  displaced  from  said  office 
by  the  judgment  of  any  court,  nor  has  the  said  Circuit  Court, 
since  his  said  investment  of  the  office  aforesaid,  as  he  is  ad- 
vised, (and  believes  to  be  true,)  been  abolished.  He  further 
states,  that  on  the  4th  day  of  May,  1835,  a  certain  Mordecai 
Mobley,  illegally  claiming  the  said  office  as  clerk,  under  color 
of  a  void  and  illegal  appointment  as  clerk  of  said  Circuit 
Court,  (as  he  is  advised  and  believes,)  made  after  the  13th  of 
February,  1835,  unlawfully  usurped,  intruded  into,  and  unlaw- 
fully held  and  executed  said  office  of  clerk  of  said  Circuit 
Court,  and  from  and  since  the  4th  day  of  May,  1836,  hath,  and 
ftill  unlawfully  held  and  executed  said  office  of  clerk  afore- 
said, and  from  and  since  the  4th  day  of  May,  1835,  hath,  and 
still  doth  unlawfully  receive,  take,  and  enjoy  the  emoluments, 

213 


216  YANDALIA. 


The  People  v.  Mobley. 


rights  and  privileges  of  the  office  aforesaid,  and  from 
and  since  the  4th  day  of  May,  1835,  the  said  Mobley 
illegally  hath  and  still  doth  refuse  to  allow  the  said  Matheny 
to  hold  and  execute  the  said  office,  or  to  receive  the  emolu- 
ments, or  to  enjoy  the  rights,  privileges  and  emoluments 
thereof ;  and  that  he  is  desirous  that  a  rule  may  be  made  upon 
the  facts  stated  herein,  on  motion  of  the  attorney  for  the 
People  of  the  State  of  Illinois,  in  the  First  Judicial  Circuit, 
upon  the  said  Mobley,  to  show  cause  why  leave  should  not  be 
given  to  file  an  information  in  behalf  of  the  People  of  the 
State  of  Illinois,  in  the  nature  of  a  quo  warranto,  upon  the  re- 
lation of  the  said  Matheny  against  said  Mobley,  for  usurping, 
intruding,  and  unlawfully  holding  and  executing  said  office  as 
aforesaid.  C.  R.  MATHENY. 

Sworn  to  and  subscribed  this  llth  day  } 
of  July,  A.  D.  1835,  before  me, 

THOMAS  MOFFETT,  Jus.  Peace."      ) 

And  moved  the  Court  for  a  rule  to  be  made  on  Mordecai 
Mobley,  to  show  cause,  if  any  he  could,  why  the  said 
[*217]  attorney  should  not  *have  leave  to  file  an  information 
in  the  nature  of  a  quo  ivarranto,  in  this  Court,  in  be- 
half of  said  People,  on  the  relation  of  Charles  R.  Matheny, 
against  said  Mobley,  for  having  illegally  usurped,  intruded 
into,  and  unlawfully  executed,  and  still  unlawfully  executing 
and  holding  the  office  of  clerk  of  the  Sangamon  Circuit 
Court ;  on  consideration  whereof,  it  is  ordered  that  said  mo- 
tion be  continued  till  the  second  day  of  the  next  term  of  this 
Court, 

And  afterward,  to  wit,  on  the  14th  day  ol   July,  1835,  be- 
ing the  regular   time  of   the   Circuit   Court  for  Sangamon 
county,  the  following  motion  came  on  to  be  heard,  viz. : 
The  People,  on  the  relation  of  ) 

Charles  R.  Matheny  v.    V  MOTION. 

Mordecai  Mobley.  j 

This  day,  Stephen  A.  Douglas,  Attorney  for  the  People  of 
the  State  of  Illinois,  in  and  for  the  First  Judicial  Circuit,  and 
on  motion  grounded  upon  an  affidavit  of  Charles  R.  Matheny, 
filed  on  the  last  day  of  the  last  special  term  of  this  Court,  and 
now  here  produced. 

It  is  ordered  that  a  rule  be  made  on  Mordecai  Mobley, 
now  acting  as  clerk  of  this  Court,  returnable  to  the  fourth 
day  of  the  present  term,  to  show  cause,  if  any  he  can,  why 
the  said  attorney  for  the  People  of  the  said  State,  should  not 
have  leave  from  this  Court  to  tile  an  information,  in  the  na- 
ture of  a  quo  warranto,  against  the  said  Mobley,  (upon  the 
relation  of  Charles  R.  Matheny,)  for  having  usurped,  in- 

214 


DECEMBER  TEEM,  1835.  217 

The  People  v.  Mobley. 

truded  into,  and  illegally  holding  and  executing  the  office  of 
clerk  of  the  Circuit  Court  of  Sangamon  county,  and  that  a 
copy  of  this  rule  be  served  upon  said  Mobley  by  the  sheriff, 
and  returnable  to  the  fourth  day  of  the  present  term. 

And  afterward,  to  wit,  on  the  16th  day  of  July,  1835,  the 
said  Mobley  being  in  Court,  by  his  attorney,  says,  that  he 
has  no  reason  to  urge  why  the  State's  attorney  shall  not  have 
leave  to  file  the  information  as  prayed  for  by  him. 

Whereupon  it  is  ordered,  that  the  rule  heretofore  en- 
tered in  this  matter  be  made  absolute,  and  that  leave  be  given 
to  file  the  information  aforesaid.  And  the  said  State's  attor- 
ney thereupon  exhibited  the  information,  which  is  ordered 
to  be  filed  and  is  in  the  words  and  figures  following,  to  wit : 

"  State  of  Illinois,  Sangamon  County,  ss., 

In  the  Circuit  Court  of  said  county,  July  term,  1835, 
Stephen  A.  Douglas,  State's  Attorney  of  the  First  Judicial 
Circuit  of  the  State  of  Illinois,  who  prosecutes  in  behalf  of 
the  People  of  the  State  of  Illinois,  on  the  relation  of  Charles 
R.  Matheny,  of  the  county  of  Sangamon,  aforesaid,  comes 
here  into  Court  and  gives  the  Court  to  understand 
and  be  informed,  that  on  the  14th  day  *of  February,  [*218] 
in  the  year  one  thousand  eight  hundred  and  twenty- 
seven,  the  said  Charles  R.  Matheny,  relator  as  aforesaid, 
was  regularly  and  legally  appointed  clerk  of  the  Circuit  Court 
for  the  county  of  Sangamon,  aforesaid,  by  the  judge  of  said 
Court ;  that  the  said  Charles  R.  Matheny  took  the  several 
oaths  required  by  the  statute  in  such  case  made  and  provided 
and  executed  bond  with  security  for  the  faithful  discharge  of 
the  duties  required  of  him  by  law,  and  thereupon  entered  into 
and  upon  the  duties  of  the  said  office,  and  was  legally  possessed 
thereof  and  exercised  the  powers,  received  the  emoluments, 
enjoyed  the  immunities  and  privileges  appertaining  to  the 
same,  and  continued  to  have,  hold,  and  enjoy  the  said  office, 
and  exercise  the  powers,  perform  the  duties,  arid  receive  the 
emoluments  and  immunities  thereof,  from  the  time  of  his 
said  appointment  and  induction  therein  until  the  4th  day  of 
May,  1835  ;  that  from  and  after  the  said  appointment  he 
never  resigned,  abandoned,  or  forfeited  the  said  office,  nor 
has  the  said  Circuit  Court  of  Sangamon  county,  or  the  office 
of  clerk  of  said  Court,  ever  been  abol  ished  ;  nor  has  he,  the  said 
Matheny,  ever  been  removed  or  displaced  from  said  office  by 
the  judgment  of  any  court.  And  on  the  said  4th  day  of  May, 
1835,  at  the'Circuit  aforesaid,  one  Moidecai  Mobley,  of  said 
county,  well  knowing  the  premises  aforesaid,  did  unla\vfully 
usurp  the  said  office  of  clerk  of  the  Circuit  Court  of  Sanga- 
mon county,  and  enter  into  and  upon  the  exercise  of  all  the 

215 


IMS  VANDAL1A. 


The  People  v.  Mobley. 


powers  and  duties  of  the  office  of  such  clerk;  and  by  such  un- 
lawful usurpation  did,  then  and  there,  become  possessed  of  the 
said  office,  and  of  the  emoluments,  immunities,  and  privileges 
appertaining  to  the  said  office,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  same  People  of  the  State  of  Illinois. 

And  the  said  State's  attorney,  on  the  relation  of  the  said 
Charles  R.  Matheny,  further  gives  the  Court  here  to  under- 
stand and  be  informed  that  the  said  Mordecai  Mobley,  on  the 
4th  day  of  May,  1835,  at  the  Circuit  aforesaid,  did  then  and 
there  unlawfully  hold  the  office  of  clerk  of  the  Circuit  Court 
of  Sangamon  county,  and  from  and  since  the  said  4th  day  of 
May,  1835,  hath,  and  still  doth  unlawfully  hold  the  said  office 
of  clerk  of  the  Circuit  Court  of  Sangamon  county,  and  exer- 
cise the  powers,  and  receive  the  emoluments  of  said  office,  the 
said  Charles  R.  Matheny,  the  relator,  being  during  all  the 
time  aforesaid  the  legal  and  lawfully  appointed  clerk  of  said 
Court,  as  stated  in  the  first  count  in  this  information,  contrary 
to  the  form  of  the  statute  in  such  cases  made  and  provided,  and 
against  the  peace  and  dignity  of  the  same  People  of  the  State 
of  Illinois. 

And  the  said  State's  attorney,  upon  the  relation 
of  the  said  Charles  R.  Matheny,  further  gives  the  Court 
here  to  understand  and  be  informed,  that  on  the  10th 
[*219]  day  of  May,  1835,  at  the  *Circuit  aforesaid  the  said 
Mordecai  Mobley  did  unlawfully  execute  the  office  of 
clerk  of  the  Circuit  Court  of  Sangamon  county ;  and  from 
and  since  the  said  10th  day  of  May,  1835,  hath,  and  still  doth 
execute  the  office  aforesaid,  without  any  lawful  authority,  one 
Charles  R.  Matheny  being  on  the  said  10th  day  of  May,  1835, 
the  clerk  of  said  Court,  and  still  continuing  to  be  and  remain 
1  such  clerk,  as  stated  and  alleged  in  the  first  count  of  this  in- 
formation, contrary  to  the  form  of  the  statute  in  such  cases 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
same  People  of  the  State  of  Illinois. 

And  the  said  State's  attorney,  upon  the  relation  of  the  said 
Charles  R.  Matheny,  further  gives  the  Court  here  to  under- 
stand and  be  informed  that  on  the  10th  day  of  May,  1835,  at 
the  Circuit  aforesaid,  the  said  Mordecai  Mobley  did  unlaw- 
fully intrude  into  the  office  of  clerk  of  the  Circuit  Court 
of  Sangamon  county,  and  by  such  unlawful  intrusion  did,  then 
and  there,  become  possessed  of  the  said  office  of  clerk  of  the 
Circuit  Court  of  Sangamon  county,  and  of  the  emoluments  and 
immunities  of  said  office,  and  hath  hitherto  continued  to  have 
and  to  hold  and  exercise  the  powers  and  duties  of  such  c^erk, 
and  to  receive  the  emoluments  of  said  office,  the  said  Charles 

216 


DECEMBER  TEEM,  1835.  219 

The  People  v.  Mobley. 

R.  Matheny  being  at  the  time  of  the  intrusion  aforesaid,  and 
still  continuing  to  be,  the  clerk  of  said  Court,  as  stated  in  the 
first  count  of  this  information,  contrary  to  the  form  of  the 
statute  in  such  cases  made  and  provided  and  against  the  peace 
and  dignity  of  the  same  People  of  the  State  of  Illinois. 

STEPHEN  A.  DOUGLAS,  State's  Attorney. 

And  afterward,  to  wit,   on  the  18th  day  of  July,  1835,  the 
following  cause  came  on  to  be  heard,  viz.  : 
The  People,  on  the  relation  of  ] 

Charles  R.  Matheny  v.  >  ON  INFOKMATION. 

Mordecai  Mobley.          ) 

This  day  came,  as  well  the  People  aforesaid,  by  their  attor- 
ney, as  the  defendant ;  and  the  said  defendant  tiled  his  plea 
herein  in  the  words  following : 

And  the  said  defendant,  by  Stone,  his  counsel,  comes  and 
defends  the  wrong  and  injury,  when  and  where,  etc..  and  says 
the  People,  their  information  aforesaid  to  have  and  maintain, 
ought  not,  because,  he  says,  that  under  the  provisions  of  an  act 
of  the  General  Assembly  of  the  State  of  Illinois  entitled  "  An 
act  to  provide  a  uniform  mode  of  holding  Circuit  Courts" 
approved  7th  January,  1835,  Stephen  T.  Logan  ,was  elected 
judge  of  the  Circuit  Court  of  Sangamon  county  and  was  reg- 
ularly commissioned  and  sworn  into  office  ;  that  according  to 
the  laws  of  the  land  the  said  Stephen  T.  Logan,  as 
such  judge,  had  full  power  *and  lawful  authority  to  [*220] 
appoint  a  clerk  of  the  Circuit  Court  of  eaid  county, 
and  having  such  power  and  authority,  he,  the  said  Logan,  on 
the  25th  day  of  April,  1835,  appointed  the  said  defendant  clerk 
of  the  Circuit  Court  of  Sangamon  county,  which  appointment 
is  in  the  words  following : 

Know  all  men  by  these  presents,  that  I,  Stephen  T.  Logan, 
Judge  of  the  First  Judicial  Circuit  in  the  State  of  Illinois,  do, 
by  these  presents,  constitute  and  appoint  Mordecai  Mobley 
clerk  of  the  Circuit  Court  for  the  county  of  Sangamon,  being 
one  of  the  counties  comprised  within  the  said  Judicial  Circuit. 
In  testimony  whereof  I  have  hereunto  set  my  hand  and  seal 
at  Springfield,  in  the  county  of  Sangamon,  this  25th  day  of 
April,  1835. 

STEPHEN  T.  LOGAN.     [L.S.] 

By  virtue  of  which  said  appointment  he,  the  said  defendant, 
entered  into  the  office  aforesaid,  (having  taken  the  oaths  and 
executed  the  bond  as  required  by  law,)  as  he  lawfully  might  do ; 
that  he  hath  and  doth  hold  the  said  office,  exercised  the  powers, 
performed  the  duties,  and  received  the  emoluments  and  im- 
munities of  the  office  aforesaid,  under  and  by  virtue  of  the  ap- 

217 


220  YANDALIA. 


The  People  r.  Mobley. 


pointment  aforesaid,  as  by  the  laws  of  the  land  he  has  a  right 
to  do.  all  which  he  is  reaay  to  verify,  etc. ;  wherefore,  etc. 

STONE,  Deft.'s  Counsel. 

To  which  the  attorney  for  the  People  h'led  a  demurrer. 

And  the  judge  of  this  Court  having  stated  that  he  had  formed 
an  opinion  upon  the  case,  which  was  unfavorable  to  the  defend-  i 
ant,  and  that  he  was  therefore  unwilling  to  decide  the  case,  it  is 
agreed  between  the  parties  that  judgment  be  entered  against  the 
right  of  the  relator,  subject  to  the  right  of  appeal.  Whereupon, 
by  consent  of  the  parties  as  aforesaid,  it  is  considered  and  ad- 
judged by  the  Court,  that  the  demurrer  to  the  defendant's  plea 
be  overruled ;  and  neither  the  People  nor  the  said  relator  making 
any  other  or  further  answer  to  the  plea  aforesaid,  it  is  considered 
and  agreed  by  the  Court  that  the  defendant  be,  and  he  is  hereby 
acquitted  of  the  charges  alleged  against  him  in  the  information, 
and  that  the  said  relator  take  nothing  thereby  ;  whereupon,  by 
leave  of  the  Court,  the  said  Charles  R.  Matheny  is  permitted 
to  prosecute  an  appeal  from  this  judgment  to  the  Supreme 
Court  of  the  State,  upon  his  executing  a  bond  to  the  defend- 
ant, in  the  penalty  of  one  hundred  dollars,  with  Wharton  Rans- 
dall,  Edward  Mitchell,  Francis  Philips,  Archer  G.  Ilerndon 
and  Janus  F.  Heed,  or  either  of  them,  as  surety,  conditioned 
that  he  will  well  and  truly  prosecute  the  appeal ;  and  in  case 
the  judgment  of  this  Court  is  affirmed,  that  he  will  pay  all 
costs  which  may  be  adjudged  against  him.  The  bond 
[*221]  to  be  executed  *before  the  clerk  of  this  Court  within 
forty  days,  and  which  bond  was  executed  and  filed  on 
the  10th  August,  1835." 

STEPHEN  A.  DOUGLAS,  State's  Attorney,  WILLIAM  THOMAS 
and  CYRUS  WALKER,  for  the  appellants. 

HENRY  EDDY  and  JESSE  B.  THOMAS,  JR.,  for  the  appellee,      i 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
The  pleadings  in  this  case  show  that  Matheny  was  clerk  of 
the  Circuit  Court  of  Sangamon  county,  on  the  3d  day  of  May, 
1835  ;  and  that  in  pursuance  of  an  act  of  the  legislature  entitled, 
"  An  a^t  to  establish  a  uniform  mode  of  holding  Circuit 
Courts,"  (Acts  of  1835,  150  ;  Gale's  Stat.  182,)  passed  on  the 
7th  of  January,  1835,  S.  T.  Logan  was  elected  judge  of  the 
Circuit  Court  of  Sangamon  county,  and  in  virtue  of  said  office 
appointed  M.  Mobley,  the  appellee,  clerk  of  the  Circuit  Court 
of  wild  county. 

It  becomes  necessary  in  this  case  to  inquire  what  powers,  in 
relation  to  the  appointment  of  clerks,  are  delegated  to  Circuit 


218 


DECEMBER  TEEM,  1835.  221 

The  People  v.  Mobley. 

Courts,  or  the  judges  thereof,  by  the  Constitution  and  laws  of 
this  State ;  and  also,  by  what  tenure  the  clerks  of  the  Circuit 
Court,  appointed  by  virtue  of  such  authority,  hold  their  office. 
By  the  4th  Article  and  6th  section  of  the  Constitution  of  this 
State,  it  is  provided  that  "  The  Supreme  Court,  or  a  majority 
of  the  justices  thereof,  the  Circuit  Courts,  or  the  justices 
thereof,  shall,  respectively,  appoint  their  own  clerks."  Is  the 
power  of  appointment  conferred  by  this  provision  of  the  Con- 
stitution a  personal  trust  or  authority,  which  may  be  exercised 
by  every  new  incumbent  upon  entering  into  the  office  of 
judge  ?  or,  is  it  not  a  power  of  appointment  confided  to  the 
Court,  or  the  judge  as  the  organ  or  minister  of  the  Court,  and 
if  so,  has  it  in  the  present  instance  been  exercised  in  such  a 
case,  and  in  such  a  manner,  as  is  warranted  by  the  Constitution 
and  laws  of  this  State  ?  From  a  fair  interpretation  of  this 
provision  of  the  Constitution,  it  is  clear  that  the  Court,  in 
contradistinction  to  a  personal  authority,  is  the  repository  of 
the  trust  conferred  by  the  Constitution ;  and  that  whenever 
a  clerk  has  been  appointed,  that  the  trust  or  authority  is 
thereby  executed,  and  can  not  be  resumed,  or  again  exercised, 
until  a  vacancy  shall  occur  in  one  of  the  several  ways  provided 
by  law.  The  terms  of  the  Constitution  "  the  justices  thereof  " 
are  used,  in  connection  with  the  Circuit  Court,  only  to  confer 
an  authority  to  make  an  appointment  in  vacation  as  well  as  in 
term  time,  in  order  that  the  administration  of  justice  might 
not  be  delayed  for  the  want  of  so  important  an  officer  of  the 
Court  as  a  clerk.  In  either  case  the  judge  acts  as  the  minis- 
ter of  the  law.  If  a  different  construction  should  prevail,  and 
the  power  of  appointment  should  be  regarded  as  per- 
sonal to  the  judge,  it  would  *necessarily  attach  to  [*222] 
every  judge  immediately  upon  his  appointment,  and 
upon  the  happening  of  a  vacancy  in  the  office  of  judge,  the 
clerkships  in  all  the  counties  of  his  Circuit  would  also  become 
vacant ;  and  upon  the  same  principle,  when  Circuit  judges 
should  exchange  Circuits,  as  by  law  they  are  authorized  to  do, 
the  office  of  clerk  would  become  vacant  by  such  exchange,  in 
all  the  counties  in  their  respective  Circuits,  because  the  judge 
presiding  in  the  Circuit  Court  of  a  county  is  for  the  time 
being  the  judge  of  that  Court ;  and  if  the  clerk  is  the  officer 
of  the  judge,  and  not  of  the  Court  or  law,  he  would  have  to 
be  appointed  upon  every  such  exchange,  and  until  the  appoint- 
ment was  made  the  administration  of  justice  would  be  sus- 
pended. Such  a  construction  of  the  Constitution,  it  is  believed, 
is  not  warranted  either  by  its  language  or  spirit,  and  would  in 
its  consequences  be  fraught  with  great  inconvenience  to  the 
public. 


•      YANDALIA. 


The  People  v.  Mobley. 


The  act  of  1835  is  relied  upon  as  vesting  in  the  judges 
eVcted  under  it  an  authority  to  appoint  the  clerks  in  their  re- 
spective counties.  This  is  undoubtedly  true  wherever  the 
offices  were  vacant ;  but  to  sustain  the  position  with  respect  to 
the  case  before  the  Court,  it  must  be  shown  that  by  this  act 
the  present  Circuit  Courts  were  created,  and  that  the  law  which 
created  those  in  existence  at  the  time  of  its  passage  was  re- 
pealed, and  the  Courts  thereby  abolished.  From  an  examina- 
tion of  that  statute,  it  will  be  apparent  that  great  caution  has 
been  used  to  avoid  such  a  result.  The  first  section  of  the  act 
provides  for  the  election  of  live  Circuit  judges  in  addition  to 
the  one  then  in  existence,  whose  duty  it  should  be  to  preside 
in  the  several  Circuit  Courts  now  or  hereafter  authorized  and 
required  to  be  held  in  the  several  counties  in  this  State.  The 
third  section  repeals  so  much  of  the  law  then  in  force  as 
required  the  judges  of  the  Supreme  Court  to  hold  Circuit 
Courts.  It  will  be  perceived  that  the  existence  of  Circuit 
Courts  is  expressly  recognized  by  the  language  of  this  act,  and 
the  requisition  to  hold  as  well  the  Circuit  Courts  which  might 
hereafter  be  created  as  those  then  in  existence,  was  intended 
to  apply  to  and  provide  for  the  administration  of  justice  in 
such  new  counties  as  might  thereafter  be  created  and  organized. 
No  part  of  the  act  repeals  the  law  of  1829,  (R  L.  147  ;  Gale's 
Stat.  158,)  by  which  the  Circuit  Courts  then  in  existence  were 
created.  It  goes  no  farther  than  to  assign  to  the  judges  elected 
under  it  the  duties  before  that  time  performed  by  the  judges 
of  the  Supreme  Court.  The  Circuit  Court  remained  the  same 
in  name,  jurisdiction,  and  character.  It  is  contended  by  coun- 
sel that  Matheny's  appointment  to  the  office  of  clerk  is  invalid, 
as  not  having  been  made  by  the  Circuit  Court  of  Sangamon 
county,  because  the  judge  who  at  the  time  of  his  appointment 
presided  in  that  Court,  wras  a  judge  of  the  Supreme 
[*223]  Court.  This  argument  is  refuted  by  a  reference  to  *that 
provision  in  the  Constitution  which  enjoins  upon  him 
the  performance  of  Circuit  duties  when  required  by  the  legis- 
lature, and  the  law  of  1829  making  the  requisition,  which 
gives  him  the  name,  and  clothes  him  with  the  authority  of  a 
Circuit  judge.  It  has  also  been  attempted  to  assimilate  the 
powers  of  the  judges,  appointed  under  the  act  of  1835,  to 
those  of  the  judges  of  the  Supreme  Court  under  the  law  of 
1827,  (R.  L.  of  1827,  119-124,)  by  which  they  were  required 
to  perform  Circuit  duties,  and  under  which  they  re-appointed 
their  clerks.  The  cases,  however,  are  essentially  different. 
The  act  of  1827  abolished  the  Circuit  Courts  then  in  existence, 
by  repealing  the  law  which  created  and  brought  them  into 
being,  and  with  the  expiration  of  that  office,  the  official 


DECEMBER  TERM,  1835.  223 

The  People  v.  Mobley. 

character  and  existence  of  the  judge,  together  with  that  of 
the  clerk  of  the  Court,  also  expired  at  the  same  time ;  and 
when,  by  the  authority  of  the  legislature,  Circuit  Courts  were 
again  called  into  being,  those  Courts  were  authorized  by  the 
provision  of  the  Constitution  referred  to,  to  appoint  their 
clerks  to  the  newly  created  offices.  The  act  of  1835,  I  have 
attempted  to  show,  did  not  abolish  or  change  the  character  of 
the  Circuit  Courts  ;  it  only  substituted  for  the  discharge  of  the 
duties  of  the  office,  one  set  of  judges  in  place  of  another.  No 
inference,  then,  in  favor  of  the  legality  of  the  appointment  of 
Moble*y  under  the  law  of  1835,  can  be  drawn  from  the  practice 
of  the  Courts  under  the  law  of  1827.  But,  on  the  contrary, 
if  any  conclusion  is  to  be  drawn  from  the  practice  of  the 
Courts,  and  if  such  practice  is  to  be  regarded  as  having  given 
a  construction  to  the  Constitution,  and  the  powers  and  duties 
of  the  judges  in  relation  to  the  appointment  of  clerks,  it  will 
settle  the  question  in  favor  of  the  relator.  By  the  Constitu- 
tion, the  commissions  of  the  judges  appointed  prior  to  the 
year  1824,  expired  at  that  period,  and  when  the  judges  elected 
to  succeed  them  came  into  office,  they  were  of  opinion  that 
inasmuch  as  the  Court  remained  the  same,  the  office  of  clerk 
was  not  vacated  by  a  change  of  judges,  and  consequently  no 
new  appointment  was  necessary  to  continue  in  office  the 
present  incumbent,  nor  has  any  such  been  made. 

This  view  of  the  subject  is  strengthened  by  an  inquiry  into 
the  tenure  by  which  a  clerk  of  the  Circuit  Couit  holds  his 
office.  The  Constitution  gives  to  the  Court  the  authority  to 
appoint  its  clerk,  but  when  thus  appointed,  it  fixes  no  limit  to 
the  duration  of  the  office.  The  clerk  then  is  to  be  considered 
as  holding  his  office  under  the  Constitution,  ad  libitum,  rntil 
the  legislature  shall  think  proper  to  prescribe  the  tenure.  This 
it  is  certainly  competent  for  it  to  do,  and  under  a  like  pro- 
vision of  the  Constitution  with  respect  to  the  auditor  and 
attorney  general,  it  has  exercised  this  authority  by  fixing  the 
term  of  service  of  those  officers.  It  has  also  legis- 
lated upon  the  subject  of  clerk,  and  *though  it  has  not  [*224] 
defined  the  tenure  of  the  office  specifically,  it  has 
done  so  to  some  extent,  by  prescribing  the  tenure  upon  which 
its  duration  is  to  depend.  Those  tenures  are  the  renewal  of 
the  bond  at  stated  periods,  his  residence  at  the  county  seat 
and  various  others.  But  a  vacancy  in  the  office  of  judge  of  the 
Court  is  not  one  of  the  causes  enumerated  which  will  vacate  the 
office  of  clerk,  or  for  which  he  may,  by  application  to  the  Court 
be  removed  from  office.  It  is  not  competent,  then,  when  the 
Constitution  has  left  the  tenure  of  an  office  without  limit,  for 
the  Court  to  prescribe  limits;  nor  is  it  their  province  when  the 

221 


224  YANDALIA. 


The  People  r.  Mobley. 


legislature  lias  specified  the  causes  of  forfeiture  of,  or  removal 
from  office,  to  say  that  other  causes  than  those  enumerated 
shall  have  that  effect.  The  consequence  of  such  a  latitude  of 
construction  would  be  to  change  the  tenure  of  an  office  and 
make  its  duration  depend  not  only  upon  the  limits  fixed  by 
law  but  upon  such  others  as  the  Court  might  think  it  good 
policy  to  superadd.  From  a  review  of  all  the  points  involved 
in  this  case,  I  am  of  opinion  that  the  order  of  the  Circuit  Court 
of  Sangamon  county,  appointing  M.  Mobley  clerk  of  that 
Court,  was  without  authority  and  erroneous,  because  the  power 
of  .appointment  is  delegated  to  the  Court,  and  the  exercise  of 
that  power  limited  to  the  filling  of  offices  which  may  be 
created,  or  which  may  become  vacant  by  any  of  the  various 
ways  known  to  the  law ;  and  because  the  relator  had  been 
legally  appointed  to  the  office  which  he  claims,  and  the  ap- 
pointment had  not  expired  by  operation  of  any  law  of  this 
State,  nor  has  he  been  removed  for  any  omission  or  act  in 
violation  of  the  law  prescribing  his  duties,  and  defining  the 
tenure  of  his  office. 

It  is  therefore  ordered  by  the  Court  that  the  judgment  of  tho 
Court  below  be  reversed,  and  that  the  relator,  Charles  R.  Math- 
eny,  be  restored  to  his  office  of  clerk  of  the  Circuit  Court  of 
Sangamon  county.  . 

BROWNE,  Justice,  concurring: 

The  appellants  filed  an  information  in  the  nature  of  a  Quo 
Warranto  against  the  defendant  for  usurping,  intruding  into, 
and  unlawfully  holding  and  exercising  the  office  of  clerk  of 
the  Sangamon  Circuit  Court,  from  and  after  the  4th  day  of 
May,  1835,  to  the  injury  of  the  relator,  who,  as  is  alleged,  was 
then  and  from  and  after  the  14th  of  February,  1827,  had 
been  legally  clerk  of  the  said  Court.  To  this  information,  the 
defendant  pleaded  specially  in  bar,  that  by  an  act  of  the  legisla- 
ture of  this  State,  passed  7th  January,  1835,  entitled  "An 
act  to  provide  a  uniform  mode  of  holding  Circuit  Courts"  a 
judge  was  regularly  elected  to  said  Circuit,  and  that  he  ap- 
pointed the  aforesaid  Mordecai  Mobley  clerk.  To  this  plea 
the  appellants  demurred.  By  agreement  of  the  par- 
[*225]  ties  in  the  Court  below  ^judgment  was  rendered  in 
favor  of  the  appellee,  subject  to  an  appeal  as  in  other 
cases.  And  now  the  appellant  assigns  for  error  the  insuffi- 
ciency of  said  plea  to  bar  the  plaintiff's  right  of  recovery.  By 
the  Constitution  of  this  State,  Article  4,  Section  4,  it  is  provided 
as  follows: 

"The  justices  of  the  Supreme  and  inferior  Courts  shall  hold 
their  offices  during  good  behavior,  until  the  end  of  the  first 
session  of  the  General  Assembly,  which  shall  be  begun  and 
222 


DECEMBER  TERM,  1835.  225 

The  People  v.  Mobley. 

held  after  the  first  day  of  January,  1824,  at  which  time  their 
commissions  shall  expire,  and  until  the  expiration  of,  which 
time  the  said  justices  respectively  shall  hold  Circuit  Courts  in 
the  several  counties,  in  such  manner  and  at  such  times,  and 
shall  have  and  exercise  such  jurisdiction  as  the  General  As- 
sembly shall  prescribe.  But  ever  after  the  aforesaid  period, 
the  justices  of  the  Supreme  Court  shall  be  commissioned 
during  good  behavior,  and  the  justices  thereof  shall  not  hold 
Circuit  Courts  unless  required  by  law." 

By  the  6th  Section,  "  The  Supreme  Court  or  a  majority  of 
the  justices  thereof,  the  Circuit  Courts,  or  a  majority  of  the 
justices  thereof,  shall  respectively  appoint  their  own  clerks." 

In  January,  1835,  the  legislature  repealed  the  act  requiring 
the  judges  of  the  Supreme  Court  to  hold  Circuit  Courts,  and 
in  the  same  statute  required  the  judges  of  the  Supreme  Court 
to  hold  annually  two  terms  of  the  Supreme  Court  at  the  seat 
of  government,  and  appointed  Circuit  judges  to  perform  that 
part  of  the  duty  that  had  been  required  of  the  judges  of  the 
Supreme  Court;  such  as  holding  Circuit  Courts,  etc.  The  law 
withdrawing  the  judges  of  the  Supreme  Court  from  the  Cir- 
cuit Courts,  did  not  destroy  those  Courts,  but  only  appointed 
other  judges  to  perform  (in  that  particular  only)  what  had 
been  before  performed  by  the  judges  of  the  Supreme  Court. 
By  the  statute  passed  13th  February,  1835,  (Acts  of  1835, 
171-2 ;  Gale's  Stat.  188,)  it  is  provided  that  "  The  several 
clerks  of  the  Circuit  Courts  appointed  or  to  be  appointed, 
shall  give  bond,  be  qualified,"  etc.,  etc. 

It  is  certainly  competent  for  the  legislature  to  impose  this 
on  the  clerks  of  the  Courts;  but  I  can  not  see  where  the  power 
is  given  to  a  judge  to  remove  a  clerk  when  once  appointed, 
where  no  charge  has  been  preferred  against  him.  By  the 
statute  of  1829,  (R.  L.  152;  Gale's  Stat.  172,)  it  is  provided 
that  "  The  clerks  of  the  respective  Circuit  Courts  shall  issue 
process,"  etc.,  etc. ;  they  "  shall  keep  their  office  at  the  county 
seats,  to  do  and  perform  all  the  duties  in  their  Courts  which 
may  be  enjoined  upon  them  by  law,"  etc.,  and  "  if  any  clerk  of 
a  Circuit  Court  shall  neglect  or  refuse  to  perform  any  of  the 
duties  enjoined  upon  him  by  law,  or  shall  in  any  manner  be 
guilty  of  malfeasance  in  office,  upon  proper  complaint  made  to 
the  Court  or  judge,  he  shall  be  removed  from  office : 
*Provided,  that  the  said  clei-k  shall  nevertheless  [*226] 
have  the  right  of  appeal  to  the  Supreme  Court,  under 
the  like  conditions  as  are  or  may  be  prescribed  by  law  for  other 
cases."  From  the  state  of  pleading  nothing  appears  to  show 
that  the  clerk  ever  violated  any  duty  that  was  enjoined  on  him 
by  law,  or  that  he  is  guilty  of  malfeasance  in  office.  I  am 

223 


226  VANDALIA. 


The  People  t>.  Mobley. 


therefore  of  the  opinion  that  the  judgment  of  the  Circuit 
Court  be  reversed,  and  that  the  aforesaid  Charles  R.  Matheny 
be  restored  to  the  office  of  clerk  of  the  Circuit  Court  of  Sanga- 
mon  county. 

SMITH,  Justice,  concurring : 

The  importance  of  the  questions  discussed  and  to  be  decided 
in  this  case,  necessarily  devolves  on  me  the  duty  of  expressing 
my  opinion  on  the  most  leading  points  developed  by  the  ap- 
plication. Entertaining  some  views  not  entirely  in  accordance 
with  the  opinion  on  which  the  judgment  of  the  Court  may  be 
predicated,  1  propose  to  state  briefly  the  grounds  on  which 
they  are  founded. 

Many  and  different  opinions  have  been  entertained,  as  to 
the  power  of  the  Circuit  Courts,  and  the  judges,  to  appoint 
the  clerks  of  those  Courts ;  some  supposing  it  a  power  which 
the  Court  alone  could  exercise,  and  others  viewing  it,  also,  as 
a  personal  power,  attaching  to  the  officer,  as  distinct  from  the 
Court. 

The  6th  Section  of  the  4th  Article  of  the  Constitution,  which 
gives  the  power  of  appointment,  is  couched  in  a  phraseology 
very  peculiar;  and  if  it  be  interpreted  literally,  would  seem  to 
admit  of  no  doubt  that  the  power  attached  as  well  to  the 
person  of  the  officer  as  to  the  Court  itself.  This  section  is  as 
follows:  "The  Supreme  Court,  or  a  majority  of  the  justices 
thereof,  the  Circuit  Courts,  or  the  justices  thereof,  shall  re- 
spectively appoint  their  own  clerks."  It  is  manifest,  from  this 
language,  that  in  asserting  under  it  the  personal  right  of 
appointment,  no  violence  would  be  done  to  the  plain  and  literal 
signification  of  the  language  used ;  and  I  am  free  to  confess 
that  from  a  casual  examination  of  the  section,  I  have  been  in- 
clined so  to  consider  it,  and  I  believe  I  have  not  been  singular 
in  such  opinion.  The  same  opinion  has  been  entertained,  I  am 
informed,  by  many  highly  intelligent  legal  men,  and  if  I  am 
not  greatly  misinformed,  it  has  been  practiced  on,  and  appoint- 
ments are  understood  to  have  been  made  under  such  a  view  of 
the  power,  considering  it  both  warranted  and  proper ;  but  more 
mature  consideration,  and  the  possible  injurious  consequences 
which  might  flow  from  such  an  interpretation,  have  induced 
me  to  conclude  that  the  more  sound  construction  is,  that  it  is 
not  a  power  attaching  to  the  person  of  the  officer,  but  that  the 
power  can  alone  be  exercised  by  him,  as  the  organ  of  the 
Court;  and  that  when  the  power  is  once  exercised,  and  the 
office  tilled  by  an  appointment,  whether  in  vacation  or 
[*227]  in  term  time,  the  incrmbent  can  not  be  displaced,  ex- 
cept in  the  manner  and  for  the  causes  provided  by 
law.  The  office  of  cjerk  is  created  under  and  by  virtue  of 


224 


DECEMBER  TERM,  1835.  227 

The  People  v.  Mobley. 

this  section  of  the  Constitution;  but  it  will  be  remarked  that 
while  thus  created  its  duration  is  left  undefined,  and  being  so, 
unless  its  tenure  be  defined  by  law,  it  would,  we  should  appre- 
hend, be  of  indefinite  duration;  whether  for  life  or  good  be- 
havior might  also  admit  of  much  doubt.  That  tenure  has  by 
the  23d  section  of  the  act  of  1829,  (E.  L.  152;  Gale's  Stat. 
172,)  regulating  the  Supreme  and  Circuit  Courts,  and  various 
other  acts  of  the  legislature,  been  in  some  measure  defined, 
and  made  to  depend  on  various  contingencies,  and  the  perform- 
ance of  certain  acts — such  as  renewing  official  bonds,  keeping 
his  office  at  the  county  seat — and  has  also  provided  for  the 
manner  of  removal  for  acts  of  malfeasance.  This  was  entirely 
within  legislative  competency,  and  its  expediency,  as  well  as 
necessity,  can  not  be  doubted. 

It  will  not  be  my  purpose  to  enumerate  with  particularity  the 
various  phases  which  have  taken  place  in  the  judicial  history 
of  the  State,  nor  of  the  organization  and  re-organization  of  its 
courts,  and  the  consequences  which  have,  or  may  be  supposed 
to  have  followed  from  the  various  acts  of  the  legislature  in  ref- 
erence thereto.  When  the  Circuit  Courts  were  first  created 
under  the  Constitution,  it  is  well  understood  that  the  judges 
of  the  Supreme  Court  were,  as  the  Constitution  provided,  as- 
signed by  law  the  duty  of  holding  Circuit  Courts.  That  after 
the  period  limited  in  the  Constitution,  and  when  in  December, 
1824,  the  re-organization  of  the  judiciary  took  place,  they  were 
withdrawn  from  that  duty,  and  Circuit  judges  were  created,  by 
and  in  virtue  of  the  powers  contained  in  the  6th  Article  of  the 
Constitution  of  the  State,  who  were,  when  once  created,  de- 
clared by  that  article  to  hold  their  offices  during  good  be- 
havior, and  subject  only  to  removal  by  impeachment  or  by 
address.  The  repealing  of  the  law  which  created  the  Circuit 
Courts,  of  whicli  the  persons  were  judges,  1st  January  and 
February,  1827,  however  it  may  be  supposed  to  have  destroyed 
the  Courts  previously  created  in  1824,  under  that  provision  of 
the  1st  Section  of  the  6th  Article  of  the  Constitution,  which 
declares,  "  The  judicial  power  of  the  State  shall  be  vested  in 
one  Supreme  Court  and  such  inferior  courts  as  the  General 
Assembly  shall  from  time  to  time  ordain  and  establish,"  could 
not,  in  my  humble  judgment,  have  in  the  least  affected  the 
tenure  of  the  office  of  the  judge.  The  shield  of  the  Constitu- 
tion was  placed  between  him  and  the  act  of  destruction,  and  if 
it  failed  to  afford  the  protection  guaranteed  by  its  broad  and 
comprehensive  declaration  of  his  right,  it  is  doubtless  because 
he  neglected  to  seek  the  shelter  it  afforded.  If  it  be  conceded 
that  all  inferior  courts,  called  into  being  under  this  section 

VOL.  I.-15  225 


•J-J7  VANDALIA. 


The  People  r.  Moble}'. 


of  the  Constitution,  might  at  all  times  be  again  de- 
[*228]  stroyed,  and  that  the  *power  again  to  create,  neces- 
sarily implies  an  equal  right  to  destroy,  still  it  seems 
to  me  impossible  to  suppose  that  the  officer,  chosen  under  the 
Constitution,  should  be  involved  in  the  destruction. 

It  is  not  in  my  judgment  necessary  to  the  denial  of  the  right 
of  the  judge  to  remove  the  relator  from  the  office  of  clerk  of 
the  Circuit  Court,  that  it  should  rest  at  all  on  the  effect  of  the 
acts  of  1827,  repealing  the  act  of  1824,  under  which  the  judges 
of  the  then  Circuit  Courts  were  chosen,  and  the  clerks  ap- 
pointed ;  for  while  it  is  admitted  that  the  Court  created  by 
the  act  of  1824  may  have  been  destroyed,  and  the  office  of 
clerk  with  it,  still  the  Constitution  preserved  the  official  ex- 
istence of  the  judge,  and  though  his  duties  were  taken  away 
and  transferred  to  others,  his  office  still  remained.  The  act 
then  of  re-organizing  anew  the  Circuit  Courts  under  the  act  of 
1827,  and  re-assigning  the  Supreme  Court  judges  to  the  duties 
of  holding  Circuit  Courts,  and  their  appointment  of  other 
clerks,  or  the  re-appointment  of  the  old  ones,  form  no  ground 
upon  which  the  removal  in  the  present  case  can  be  with  pro- 
priety based. 

The  cases  seem  to  me  not  by  any  means  apposite.  The 
dissimilarity  of  the  provisions  in  the  act  of  1827,  and  the  act 
of  1835,  providing  for  a  uniform  mode  of  holding  the  Circuit 
Courts  in  this  State,  is,  I  think,  most  manifestly  to  be  per- 
ceived, from  a  comparison  of  the  language  used  in  them.  The 
act  af  1827  professed,  in  open  and  undisguised  terms,  to  abro- 
gate the  Circuit  Courts  created  by  the  act  of  1824,  and  the  re- 
organization provided  in  the  same  act  referred  to  those  Courts 
as  having  heretofore  had  an  existence.  The  act  of  1835  has 
not  the  most  distant  allusion  to  an  abrogation  of  the  Circuit 
Courts,  but  provides  for  the  choice  of  other  officers,  who  are 
to  be  assigned  to  the  holding  of  Courts  in  existence,  and  such 
as  should  be  thereafter  required  to  be  held,  in  the  several 
counties  of  the  State.  It  is  in  vain  then  to  refer,  in  my  opin- 
ion, to  the  acts  of  1827,  or  the  practice  under  them,  in  relation 
to  the  appointment  of  clerks,  to  sustain  the  removal  of  the 
relator  in  this  case.  The  clerk  could  alone  have  been  removed 
for  some  one  of  the  causes  named  in  the  several  laws  already 
referred  to,  in  the  manner  provided  in  the  23d  section  of  the 
act  of- 1829  (R.  L.  152;  Gale's  Stat.  172).  It  has  been  urged 
in  the  argument,  that  the  12th  section  of  the  act  of  the  13th 
Feb.  1835  (Acts  of  1835,  171-2;  Gale's  Stat.  188),  regulating 
the  times  of  holding  the  Supreme  and  Circuit  Courts,  author- 
ized the  removal.  I  can  see  nothing  in  that  section  warrant- 
ing such  an  inference,  much  less  expressly  providing  there- 

226 


DJECEMBER  TEEM,  1835.  228 

Clark  f.  Lake. 

for,  or  recognizing  the  power.     It  is  merely  declaratory  of  the 
manner  in  which  clerks  appointed,  or  to  be  appointed^  under 
the  act  establishing  a  uniform  mode  of  holding  Circuit  Courts, 
should  give  bond.     This  was  merely  a  provision  in 
relation  to  *appointments  to   vacancies,  and  Courts      [*229] 
of  counties  newly  organized.     If  it  had  intended  to 
have  conferred  the  power  of  removal,  it  would  have  spoken 
out  in  language  not  to  be  misunderstood. 

Considering  that  the  power  of  appointment  under  the  Con- 
stitution is  committed  to  the  judges  of  the  Court,  as  the  organs 
thereof,  and  is  not  a  mere  personal  authority  to  be  exercised 
by  every  new  incumbent,  and  that  the  tenure  of  the  office  of 
clerk  is  limited  and  defined  by  law  ;  that  the  causes  for  which 
the  clerk  shall  be  removed  have  been  also  defined,  and  the 
modes  of  proceeding  prescribed  ;  and  that  the  regularity  of  the 
proceedings  and  records  of  the  courts,  and  the  duties  which  ap- 
pertain to  the  office  will  be  greatly  promoted  by  uniformity  and 
stability  of  the  tenure  under  which  the  incumbents  hold  their  of- 
fices; I  feel  constrained  from  a  sense  of  what  I  am  convinced  upon 
mature  reflection  upon  the  points  made,  is  the  just  and  rational 
interpretation  of  the  Constitution  and  the  laws  relative  thereto, 
to  concur  in  the  judgment  of  the  Court  in  favor  of  the  relator. 

Judgment  reversed. 


PHILIP  CLAKK,  plaintiff  in  error,  v.  BAYLESS  LAKE, 
defendant  in  error. 

Error  to  Sangamon. 

OBSTRUCTION  OP  NAVIGABLE  STREAM — LIABILITY — EVIDENCE. — In  an 
action  by  C.  against  L.,  for  erecting  a  dam  across  a  navigable  stream,  which 
obstructed  its  navigation,  and  by  means  of  which  C.'s  boat  and  boat 
load  of  corn  were  lost,  the  defendant,  asked  a  witness  "whether  there  was 
not  another  mill-dam  across  said  river  below  the  defendant's  mill-dam, 
erected  in  violation  of  law,  which  was  higher  than  the  defendant's  mill-dam; 
and  whether  said  lower  clam  would  not  have  prevented  plaintiff  from  pro- 
ceeding to  the  lower  markets  of  Natchez  or  New  Orleans,  as  it  was  late  in 
the  season,  and  no  other  tide  might  take  place  in  the  river  during  that 
peason,  even  if  the  plaintiff  could  have  gone  over  the  defendant's  mill-dam." 
He  Id,  that  the  question  was  illegal  and  improper. 

The  law  is  well  settled,  that  every  person  who  erects  an  obstruction  across 
a  public  highway  is  liable  for  all  the  injuries  that  result  from  it.  It  is  con- 
sequently no  excuse  that  another  obstruction  would  have  produced  the  same 
effect. 

The  rule  relative  to  receiving  or  rejecting  testimony,  is:  Does  the  pro- 
posed testimony  tond  to  prove  the  issue  joined  between  the  parties?  If  the 
t(  sfimbny  offered  does  not  tend  to  prove  the  issue,  or  is  calculated  to 
lead  the  jury  astray,  it  ought  to  be  rejected. 

227. 


YANDALIA. 


Clark  r.  Lake. 


THIS  canse  was  tried  at  the  July  term,  1835,  of  the  Sanga- 
mon Circuit  Court,  before  the  Hon.  Richard  M.  Young  and 
a  jury,  and  a  verdict  and  judgment  rendered  for  the  defend- 
ant. 

C.  WALKER,  for  the  plaintiff  in  error. 

[*230]     *J.  T.  STUART  and  M.  MCDONNELL,  for  the  defendant 
in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  trespass  on  the  case,  brought  by  Clark 
against  Lake,  in  the  Sangamon  Circuit  Court.  The  plaintiff 
declared  against  the  defendant  for  erecting  a  dam  across  the 
Sangamon  river — which  stream  had  been  declared  a  public 
highway  by  a  statute  of  this  State — whereby  the  plaintiff  had 
been  obstructed  in  the  navigation  thereof,  while  proceeding 
down  the  river  with  a  boat  load  of  corn,  and  thereby  lost  his 
^aid  boat  and  contents.  The  defendant  pleaded  not  guilty.  On 
the  trial  of  the  cause,  the  plaintiff  gave  evidence  conducing  to 
prove  that  he  descended  said  river  with  a  boat  load  of  corn, 
with  a  sufficient  tide  of  water  to  descend  the  river,  if  it  had 
not  been  obstructed  by  artificial  obstacles,  and  intending  to  go 
to  Natchez  or  New  Orleans.  That  when  the  boat  arrived 
within  three  fourths  of  a  mile  of  the  defendant's  mill-dam,  he 
stopped  his  boat.  That  in  consequence  of  the  said  dam's  im- 
peding the  navigation  of  the  said  river,  the  boat  could  not  pro- 
ceed on  the  trip,  and,  in  consequence  of  being  so  stopped,  the 
fcorn  was  lost.  That  the  corn  was  worth  twelve  and  a  half  cents 
per  bushel  where  it  was  stopped  on  the  river,  and  worth 
seventy-five  cents  at  the  lower  markets.  After  the  foregoing 
evidence  was  given,  the  defendant  asked  a  witness,  "  Whether 
there  was  not  another  mill-dam  across  said  river,  below  the  de- 
fendant's mill-dam,  erected  in  violation  of  said  law,  which  was 
higher  than  the  defendant's  mill  dam  ;  and  whether  said  lower 
darn  would  not  have  prevented  plaintiff  from  proceeding  to  the 
lower  markets  of  Natchez  or  New  Orleans,  as  it  was  late  in  the 
season  and  no  other  tide  might  take  place  in  the  river  during 
that  season,  even  if  the  plaintiff  could  have  gone  over  the  de- 
fendant's mill-dam," — to  which  the  plaintiff's  counsel  objected ; 
but  the  court  overruled  the  objection  and  permitted  the  ques- 
tion to  be  asked  and  the  defendant  to  prove  that  fact  to  the 
jury  by  said  witness.  To  which  opinion  and  judgment  of  the 
Court  the  plaintiff  by  his  counsel  excepted. 

The  only  question  presented  in  this  case  is,  whether  the  Cir- 
cuit Court  erred  in  permitting  this  testimony  to  be  given  to 
the  jury. 

•28 


DECEMBER  TERM,  1835.  230 

Clark  v.  Lake. 

It  appears  from  the  record  that  the  verdict  was  for  the  de- 
fendant, which  probably  shows  the  effect  that  this  testimony 
was  designed  to  have.  This  Court  can  not  conceive  what  other 
use  could  have  been  made  of  this  testimony  unless  it  was  to 
urge  to  the  jury  that  if  the  plaintiff  could  have  passed  the  de- 
fendant's dam  he  would  not  have  been  benefited  by  it,  as  he 
inevitably  would  have  been  stopped  by  the  dam  lower 
down  the  river.  This  mode  *of  reasoning,  if  adopted,  [*231] 
was  not  more  unsound  in  morals  than  in  law.  The  law 
is  well  settled  that  every  person  who  erects  an  obstruction 
across  a  public  highway  is  liable  for  all  the  injuries  that  result 
from  it.  It  is  consequently  no  excuse  that  another  obstruction 
would  have  produced  the  same  effect,  for  the  obvious  reason 
that  the  party  injured  by  the  first  obstruction  has  no  cause  of 
action  against  the  person  who  erected  the  second.  In  the  pres- 
ent case  the  second  mill-dam  had  not  delayed  the  plaintiff;  and 
of  course  he  could  not  have  sued  the  person  who  erected  it.  If 
the  plaintiff  sought  to  recover  damages  for  a  greater  amount' 
than  the  value  of  the  corn  and  boat,  where  the  injury  oc- 
curred, by  showing  how  much  profits  he  had  lost  by  the  ob- 
struction occasioned  by  defendant's  mill-dam,  it  doubt!  ess  would 
have  been  proper  for  the  defendant  to  show,  in  mitigation  of 
damages,  that  such  profits  could  never  have  been  realized  in 
consequence  of  the  impossibility  of  the  boat's  making  the  lower 
markets  occasioned  by  obstructions  in  the  river  below  defend- 
ant's mill-dam.  It  is  manifest,  however,  that  the  evidence  was 
not  offered  in  mitigation  of  damages,  because  no  such  limita- 
tion was  proposed  by  the  defendant  nor  required  by  the  Cir- 
cuit Court.  The  true  rule  relative  to  receiving  or  rejecting 
testimony  is,  Does  the  proposed  testimony  tend  to  prove 
the  issue  joined  between  the  parties  ?  If  the  testimony  offered 
does  not  tend  to  prove  the  issue  or  is  calculated  to  lead  the 
jury  astray,  it  ought  to  be  rejected.  This  Court  believing  that 
such  may  have  been  the  effect  of  the  question  asked  by  the 
defendant  are  of  opinion  that  the  Circuit  Court  erred  in  not 
rejecting  it. 

The  judgment  is  therefore  reversed  with  costs,  and  the  cause 
remanded,  with  directions  to  the  Circuit  Court  of  Sangamon 
county  to  award  a  venire  de  now. 

Judgment  reversed. 

229 


231  YANDALIA. 


Marshall  ».  Maury. 


ABRAHAM  MARSHALL,  appellant,  v.  ABRAHAM  MAURY, 

appellee. 

Appeal  from  Schuyler. 

FoRECi-osiniE  OF  MORTGAGE — SCIRE  FACIAS. — A  scire  facias  to  foreclose 
a  mortgage,  is  considered  both  as  process  and  declaration;  and  the  proper 
course  to  take  advantage  of  informalities  is  by  demurrer. 

A  scire  facias  may  be  amended. 

The  objection  that  a  judgment  was  given  without  a  rule  to  plead,  cannot 
be  assigned  for  error. 

A  scire  facias  on  a  mortgage  is  a  proceeding  in  rem;  and  the  judgment 
should  direct  the  sale  of  the  mortgaged  premises.  The  direction,  "that  a  spe- 
cial execution  issue  therefor,  according  to  the  statute  In  such  case  made  and 
provided,"  is  not  sufficient. 

[*232]       *THIS  cause  was  heard  at  the  June  term,  1835,  of  the 
Schuyler  Circuit  Court,  before  the  Hon.  Stephen  T. 
Logan,  and  judgment  rendered  for  the  appellee. 

C.  WALKER  and  G.  W.  P.  MAXWELL,  for  the  appellant. 

0.  H.  BROWKING,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  a  scire  facias  brought  by  Maury  against  Marshall 
in  the  Schuyler  Circuit  Court,  to  foreclose  a  mortgage  executed 
by  Marshall  to  Maury.  A  motion  was  made  in  the  Circuit 
Court  by  the  defendant  below,  to  quash  the  scire  facias,  for 
not  averring  that  the  note  copied  into  it  was  the  note  referred 
to  in  the  mortgage,  and  because  it  did  not  assign  either  a 
breach  of  the  mortgage  or  a  breach  of  the  note.  The  Cir- 
cuit Court  overruled  the  motion,  and  the  defendant  not  mak- 
ing any  further  defense,  the  Court  gave  judgment  for  the 
plaintiff  for  the  amount  due  on  the  mortgage,  with  directions 
"  that  a  special  execution  issue  therefor,  according  to  the  stat- 
ute in  such  case  made  and  provided." 
The  errors  assigned  are: 

1.  That  the  Circuit  Court  refused  to  quash  the  scire  facias •.' 

2.  Entering  judgment  without  a  rule  to  plead. 

3.  Rendering  judgment  for  more  than  the  scire  facias 
claimed. 

4.  Rendering  judgment  generally  instead  of  specially. 

CITED:  4  Scam.  375;  20111.  515. 
See  ante  24;  25  111.  89. 
230 


DECEMBER  TEEM,  1835.  232 

Vanlandinghami'.  Fellows  et  al. 

A  scire  facias  is  considered  both  as  process  and  declaration, 
and  the  proper  course  to  take  advantage  of  informalities  is  by 
demurrrer.  Had  the  defendant  below  demurred,  the  scire 
facias  might  have  been  amended.  (State  Bank  of  Illinois  v. 
Buckmaster,  Breese,  133;  Snyder  v.  The  State  Bank  of  Illinois, 
Breese,  122.)  The  motion  to  quash  was  therefore  correctly 
overruled.  The  objection  that  the  judgment  was  given  with- 
out a  rule  to  plead,  can  not  be  assigned  for  error.  If  according 
to  the  practice  of  the  Court  below,  a  rule  to  plead  ought  to 
have  been  entered,  the  proper  course  would  have  been  to  ap- 
ply to  tbe  Court  below  to  have  set  aside  the  judgment  for 
irregularity.  The  last  error  assigned  is  fatal.  The  statute 
provides  "  That  the  Court  may  proceed  to  give  judgment, 
with  costs,  for  such  sum  as  may  be  due  by  said  mortgage,  or 
appear  to  be  due  by  the  pleadings,  or  after  defense,  if  any  be 
made,  and  also  that  said  mortgaged  premises  be  sold  to  satisfy 
such  judgment."  A  scire  facias  on  a  mortgage  is  a  proceed- 
ing in  rem;  and  the  judgment  should  have  been,  as  the  statute 
directs,  to  sell  the  mortgaged  premises.  For  this  error  the 
judgment  must  be  reversed  with  costs,  and  the  cause  remand- 
ed, with  directions  to  tthe  Circuit  Court  to  give  the  proper 
judgment. 

Judgment  reversed. 


*OLIVER    C.   VAKLANDINGHAM,    plaintiff  in     [*233] 
error,   v.    WILLIAM   FELLOWS,   CORNELIUS 
FELLOWS,  and  ABRAHAM  HITE,  co-partners,    under 
the  style   of  W.  &  C.  Fellows  &   Co.,  defendants   in 
error. 

Error  to  Gallatin. 

RECORD — WHAT  .NOT  A  PART  OP. — The  reasons  filed  by  a  party,  as  the 
foundation  for  a  motion  in  the  Circuit  Court,  do  not  thereby  become  a  part 
of  the  record.  To  make  them  a  part  of  the  record  they  should  be  embodied 
in  a  bill  of  exceptions. 

WRIT  OF  INQUIRY. — A  writ  of  inquiry  may  be  executed  in  vacation  as 
well  a«  in  term  time.  It  may  be  executed  at  any  place  within  the  sheriff's 
bailiwick.  The  statute  has  not  changed  the  common  law  in  this  respect. 

If  any  irregularity  take  place  in  the  execution  of  a  writ  of  inquiry,  the 
proper  way  is  to  apply,  upon  affidavit,  to  the  Circftit  Court  to  set  the  in- 
quest aside. 

THE  judgment  in  this  cause  was  rendered  at  the  July  term, 

CITKD:  4  Scam.  420;  3  Gilrn.  154;  16  111.  532. 
See  27  111.  71. 

231 


033  YANDALIA. 


Vanlandingham  r.  Fellows  et  al. 


1835,   of  the  Gallatin  Circuit  Court,  by  the  Hon.  Alex.  F. 
Grant. 

W.  J.  GATEWOOD  and  J.  J.  ROBINSON,  for  the  plaintiff  in  er- 
ror. 

H.  EDDY,  for  the  defendants  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  assumpsit  commenced  by  W.  &  C. 
Fellows  and  company  against  Yanlandingham,  in  the  Gallatiu 
Circuit  Court,  for  goods  sold,  money  lent  and  advanced,  and 
paid,  laid  out  and  expended,  and  also  for  money  had  and  re- 
ceived, and  an  insimul  computassent. 

The  defendant  below  made  default,  whereupon  a  judgment 
by  default  was  entered,  and  a  writ  of  inquiry  awarded  to  be  ex- 
ecuted in  vacation. 

At  the  next  term  of  the  Gallatin  Circuit  Court,  to  wit,  on 
the  17th  day  of  April,  1835,  upon  the  return  of  the  writ  of 
inquiry,  final  judgment  was  given  for  the  plaintiffs  below. 
Subsequently,  in  the  same  term,  to  wit,  on  the  18th  day  of 
April,  the  defendant  below  moved  the  Court  to  set  aside  the 
inquistion,  and  filed  reasons  therefor,  but  did  not  accompany 
them,  with  an  affidavit  of  their  truth.  The  Court  overruled 
the  motion. 

To  reverse  this  decision,  a  writ  of  error  has  been  brought  to 
this  Court,  and  the  following  errors  assigned,  to  wit :  1.  That 
the  writ  of  inquiry  was  executed  in  vacation,  arid  not  in  term 
time,  and  in  open  Court.  2.  That  the  plaintiff  in  error  had 
no  notice  of  the  time  and  place  of  executing  the  writ  of  in- 
quiry. 3.  That  the  verdict  was  contrary  to  law  and  evidence. 
4.  That  the  Court  overruled  the  motion  to  quash  the  writ, 
^  set  aside  the  verdict,  and  arrest  the  judgment. 

In  relation  to  the  three  last  errors  assigned,  the  Court  are 
clearly  of  opinion  that  they  can  not  be  assigned  for  er- 
[*234]  ror.  The  *reasons  filed  by  a  party,  as  the  foundation 
for  a  motion,  do  not  thereby  become  a  part  of  the 
record.  If  the  facts  had  been  properly  before  the  Circuit 
Court,  and  that  Court  had  decided  erroneously,  the  proper 
course  would  have  been  to  have  taken  a  bill  of  exceptions. 
For  anything  that  appears  from  the  record,  the  Circuit  Court 
may  have  overruled  the  motion  to  set  aside  the  inquisition, 
because  no  affidavit  had  been  filed  showing  the  truth  of  the 
reasons  relied  on.  If  the  Circuit  Court  refused  the  motion 
upon  this  ground,  it  decided  correctly.  But  this  Court  can 
not  take  any  notice  of  the  reasons  fiied  in  the  Court  below,  as 
the  ground  of  the  motion  to  set  aside  the  writ  of  inquiry,  etc., 


DECEMBER  TERM,  1835.  234 

Vanlandingham  v.  Fellows  et  al. 

because  we  consider  them  as  forming  no  part  of  the  record. 
The  only  question  for  our  decision  is  that  arising  from  the 
order  of  the  Circuit  Court,  that  a  writ  of  inquiry  issue,  to  be 
executed  in  vacation.  Was  this  irregular?  A  writ  of  inquiry 
at  common  law  is  a  mere  inquest  of  office,  to  inform  the  con- 
science of  the  Court,  who,  if  it  please,  may  itself  assess  the 
damages,  with  the  assent  of  the  plaintiff,  or  direct  them  to  be 
assessed  by  the  sheriff  or  other  proper  officer.  (Tidd's  Pract. 
617.)  In  the  performance  of  this  duty  it  has  been  decided 
that  the  sheriff  acts  ministerially,  and  consequently  the  writ 
may  be  executed  by  a  deputy.  But  if  it  appears  that  impor- 
tant questions  of  law  will  arise  on  the  execution  of  the  writ, 
the  Court  will  order  it  to  be  executed  in  open  Court.  (Tidd's 
Pract.  623.)  From  this  view  of  the  common  law,  relative  to 
writs  of  inquiry,  it  follows  that  it  is  not  necessary  to  execute 
the  writ  in  Court,  unless  expressly  so  directed  by  the  Court, 
nor  in  term  time,  nor  at  the  Court  House.  It,  like  other 
writs,  may  be  executed  at  any  place  within  the  sheriff's  baili- 
wick. Should  any  irregularities  take  place,  such  as  want  of 
notice,  improper  persons  impaneled  as  jurors,  or  illegal  tes- 
timony received,  the  proper  course  is  to  apply,  upon  affidavit 
of  the  facts,  to  the  Circuit  Court,  to  set  the  inquest  aside.  If 
then  the  order  of  the  Circuit  Court  to  execute  the  writ  in  va- 
cation is  no  violation  of  the  practice  at  common  law,  has  the 
13th  section  (R.  L.  490;  Gale's  Stat.  532)  of  the  "  Act  con- 
cerning Practice  in  Courts  of  Law"  changed  the  practice  so 
that  a  sheriff  can  not  execute  a  writ  of  inquiry  of  damages? 
This  section  provides,  that  "Whenever  judgment  shall  be 
given  against  the  defendant  or  defendants  by  default,  in  any 
action  brought  on  any  instrument  of  writing  for  the  payment 
of  money  only,  the  Court  may  direct  the  clerk  to  assess  the 
damages  by  computing  the  interest,  and  report  the  same  to 
the  Court,  upon  which  final  judgment  shall  be  given;  and  in 
all  other  actions,  when  judgment  shall  go  by  default,  the 
plaintiff  may  have  his  damages  assessed  by  the  jury  in  Court." 

This  language  can  be  construed  only  to  mean  that 
the  plaintiff  *rnay,  if  he  elect  so  to  do,  have  his  in-     [*235] 
quest  taken  in  Court.     The  common  law  practice  "is, 
as  we  have  seen,  that  the  plaintiff  by  showing  good  reasons 
can  have  the  writ  of  inquiry  executed  in  Court ;  but  under 
this  statute  he  has  a  right  to  insist  upon  its  being  executed  in 
Court;  yet  he  undoubtedly  may  waive  the  right.     The  order, 
then,  to  execute  the  writ  of  inquiry  in  vacation,  can  not  be  as- 
signed for  error  by  the  defendant  below. 

The  judgment  must  therefore  be  affirmed  with  costs. 

Judgment  affirmed. 

233 


235  VAKDALIA. 


Bustard  et  al.  v.  Morrison  et  al. 


JOHN  BUSTARD  and  CHARLES  NOOE,  plaintitfs  in  error, 
v.  WILLIAM  MORRISON,  administrator  of  the  estate  of 
John  Edgar,  deceased,  JAMES  EDGAR,  ISABELLA  ED- 
GAR, RACHEL  M.  MCCRACKEN,  ROBERT  MCCRACKEN, 
and  NICHOLAS  MCCRACKEN,  heirs  at  law  of  said  John 
Edgar,  deceased,  and  ROBERT  MORRISON,  THOMAS 
SHORT,  LEONARD  JONES,  JAMES  NELSON,  and 
CHARLES  GARNER,  defendants  in  error. 

Error  to  Randolph. 

CHANCERY — LIEN  OF  JUDGMENT. — It  is  not  the  province  of  a  court  of 
chancery  to  carry  into  effect  the  judgments  of  a  court  of  law. 

The  statute  makes  judgments  of  the  Circuit  Court  a  lien  upon  all  the  lands 
of  the  defendant  within  its  jurisdiction.  No  sale  or  transfer  of  these  lands 
after  judgment,  will  exempt  them  from  the  operation  of  an  execution  at  any 
time  within  seven  years. 

If  by  lapse  of  time,  or  his  own  negligence,  a  party  loses  his  lien,  a  court 
of  chancery  can  not  aid  him  by  extending  the  lien  beyond  the  period  limited 
by  law. 

A  judgment  of  a  Circuit  Court  creates  no  lien  upon  lands  beyond  the  limits 
of  the  county  in  which  such  judgment  is  rendered. 

Tms'cause  was  decided  in  the  Court  below,  by  the  Hon 
Theophilus  W.  Smith,  at  the  April  term,  1834. 

J.  SEMPLE,  for  the  plaintiffs  in  error. 

D.  J.  BAKER,  for  the  defendants  in  error,  contended : 
A  judgment  creditor  can  not  go  into  equity  to  set  up  or  en- 
force the  judgment  lien  against  the  real  estate  of  a  debtor  who 
dies  after  judgment,  the  existence  of  the  lien  and  the  method 
of  enforcing  it  being  purely  legal  matters.  Miami  Ex.  Co. 
Banlcv.  Turpin  et  al.,  3  Ohio,  517;  Conover's  Dig.  Index, 
136. 

Bill  in  equity,  etc.,  can  not  be  sustained,  as  complain- 
[*236]     ant  has  his  *remedy  at  law.     Bustard  v.  Ddbney  et 

al.,  4  Ohio,  70  ;  Conover's  Dig.  Index,  137. 
Judgment  liens  are  matters  purely  legal,  etc.     6  Ohio,  162  ; 
Con.  Dig.  Index,  141-2. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 
The  material  facts  set  out  in  the  complainant's  bill  are,  that 

CITED:  28  III.  275;  34  111.  447;  103  111.  156. 
See  4  Gilm.  50. 

231 


DECEMBEK  TERM,  1835.  236 

Bustard  et  al.  v.  Morrison  et  al. 

in  1821  they  obtained  a  judgment  in  the  Randolph  Circuit 
Court  against  J.  Edgar  for  $829  ;  that  in  1823  an  execution 
issued  on  this  judgment,  which  was  replevied,  with  R.  Morri- 
son as  surety.  Other  executions  afterward  issued,  which  were 
returned  unsatisfied.  The  bill  further  sets  out  that  Edgar  died 
insolvent,  but  that  at  the  time  of  the  rendition  of  the  judg- 
ment he  was  the  owner  of  lands  in  the  counties  of  Randolph, 
Jackson  and  Perry,  all  of  which  were  sold  to  persons  who  are 
made  defendants  to  the  bill  of  complaint,  subject,  however,  to 
the  judgment  of  the  complainants,  and  concludes  with  a  prayer 
that  the  lien  may  be  perpetual,  and  the  land  sold  to  satisfy 
their  judgment. 

To  this  bill  the  defendants  demurred.  The  Court  sustained 
the  demurrer,  and  the  decision  of  the  Court  sustaining  the 
demurrer  is  the  error  assigned  for  the  reversal  of  the  judg- 
ment below. 

It  is  clear  that  the  complainants  have  mistaken  their  rem- 
edy, and  the  effect  of  their  judgment.  It  is  not  the  province 
of  a  court  of  chancery  to  carry  into  effect  the  judgments  of  a 
court  of  law.  The  powers  of  a  court  of  law  are  amply  suffi- 
cient to  carry  into  effect  its  own  adjudications.  The  statute 
makes  judgments  of  the  Circuit  Court  alien  upon  all  the  lands 
of  the  defendant  within  its  jurisdiction.  !No  sale  or  transfer  of 
those  lands  after  judgment  will  exempt  them  from  the  operation 
of  an  execution  at  any  time  within  seven  years,  since  the  act  of 
1825  (R.  L.  371 ;  Gale's  Stat.  389).  In  this  case,  according  to  the 
complainant's  own  showing,  the  lands  were  sold  subject  to  their 
judgment.  The  party,  then,  have  mistaken  their  remedy  in 
applying  to  a  court  of  chancery  to  enforce  their  judgment, 
instead  of  availing  themselves  of  the  process  of  the  court  by 
which  it  was  rendered.  If  by  the  lapse  of  time  and  their  own 
laches  they  have  lost  their  lien,  a  court  of  chancery  can  not 
aid  them  by  extending  the  lien  beyond  the  period  limited  by 
law;  neither  can  it  make  the  judgment  of  the  Randolph  Cir- 
cuit Court  a  lien  upon  the  land  lying  in  the  counties  of  Jack- 
son and  Perry.  The  judgment  of  a  Circuit  Court  creates  no 
lien  upon  land  beyond  the  limit  of  its  jurisdiction,  to  wit,  the 
county  in  which  such  judgment  is  rendered. 

The  judgment  of  the  Court  below  is  affirmed  with  costs. 

Judgment  affirmed. 

235 


237  YANDALIA. 


Robinson  v.  Harlan. 


[*237]     *JEFFEEY  KOBINSON,  appellant,  v.  JAMES  D. 
HARLAN,  appellee. 

Appeal  from  Wayne. 

DUTY  OP  CONSTABLE  TO  EXECUTE  PROCESS— JURISDICTION  OP  JUSTICE — 

PLEADING. — It  can  not  be  denied  that  a  constable  is  liable  where  he  has  will- 
fully neglected  or  refused  to  execute  lawful  process  issued  upon  a  judgment 
rendered  by  a  justice  of  the  peace,  in  a  case  where  he  had  jurisdiction  of  the 
subject-matter  litigated;  but,  to  enforce  this  liability,  it  is  not  only  necessary 
for  the  declaration  to  allege  generally  that  the  magistrate  had  jurisdiction, 
but  it  should  set  out  specifically  the  kind  of  action  and  extent  of  the 
plaintiff's  claim,  in  order  to  show  to  the  Court  that  the  justice  had  jurisdic- 
tion. 

A  justice's  court  is  one  of  limited  jurisdiction ;  the  statute  is  the  charter  of 
its  authority ;  and  whenever  it  assumes  jurisdiction  in  a  case  not  conferred  by 
the  statute,  its  acts  are  null  and  void,  and  the  officer  obeying  its  process  in 
such  a  case  makes  himself  liable.  But  if  the  Court  has  jurisdiction,  the 
officer  is  not  bound  to  inquire  farther,  its  process  is  sufficient  authority  to  him. 

THIS  cause  was  tried  in  the  Court  below,  at  the  September 
term,  1835,  before  the  Hon.  Alex.  F.  Grant,  and  judgment 
rendered  for  the  defendant.  The  plaintiff  appealed  to  this 
court. 

J.  PEARSON,  for  the  appellant,  cited  Cowen's  Justice,  663, 
665;  R  L.  351 ;  Breese,  284  ;  2  Tidd's  Pract.  1030,  1031, 1061, 
1065,  1067,  1036,  1032  ;  Bac.  Abr.  title  D;  4  Ohio  E.  136  j 
Conover's  Dig.  275. 

O.  B.  FICKLIN,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  trespass  on  the  case,  brought  by  Rob- 
inson against  Harlan,  as  constable,  for  neglecting  and  refusing 
to  execute  process  issued  by  a  justice  of  the  peace,  upon  a 
judgment  rendered  by  the  justice  in  favor  of  the  plaintiff, 
against  John  B.  Gash.  The  declaration  alleges  that  the  judg- 
ment was  rendered,  and  an  execution  first  issued  and  put  into 
the  hands  of  Harlan,  as  constable,  upon  which  he  returned 
"  no  property  found,"  after  which  a  capias  was  issued  and  re- 
turned by  Harlan  "  not  found."  It  then  charges  that  upon 
the  execution  the  constable  might  have  made  the  money,  and 
that  with  the  capias  he  might  have  taken  the  body  of  Gash, 
but  that  he  refused  and  neglected  to  do  either,  to  the  damage 

CITED:  3  Gilm.  79. 

See  ante,  200;  3  Scam.  485;  4  Scam.  89;  13  111.  337;  21  III.  635. 

236 


DECEMBER  TERM,  1835.  237 

Hannum  v.  Thompson. 

of  the  plaintiff  $200.      To  this  declaration  the  defendant  in- 
terposed a  demurrer,  which  was  sustained  by  the  Court. 

It  can  not  be  denied  that  a  constable  is  liable  where  he  has  will- 
fully neglected  or  refused  to  execute  lawful  process  issued  upon 
a  judgment  rendered  by  a  justice  in  a  case  where  he  had  juris- 
diction of  the  subject-matter  litigated  ;  but  to  enforce  this  lia- 
bility, it  is  not  only  necessary  for   the   declaration   to   allege 
generally  that  the  magistrate  had  jurisdiction,  but  it 
should  set  *out  specifically  the  kind  of  action,  and  ex-     [*238] 
tent  of  the  plaintiff's  claim,  in  order  to  show  to  the 
Court  that  the  justice  had  jurisdiction. 

The  declaration  in  this  case  is  essentially  defective  in  this 
respect;  it  does  not  set  out  the  cause  of  action,  or  contain 
even  a  general  allegation  of  the  justice's  jurisdiction.  The 
reason  of  this  rule  is  obvious.  By  adverting  to  the  organiza- 
tion and  powers  of  a  justice's  court,  it  will  be  perceived  that 
it  is  one  of  limited  jurisdiction.  The  statute  is  the  charter  of 
its  authority;  and  whenever  it  assumes  jurisdiction  in  a  case 
not  conferred  by  the  statute,  its  acts  are  null  and  void,  and  the 
officer  obeying  its  process  in  such  a  case  makes  himself  lia^e. 
It  is  therefore  incumbent  upon  a  ministerial  officer  to  look  to 
the  jurisdiction  of  the  Court,  but  he  is  bound  to  look  no  farther. 
Its  process  is  a  sufficient  warrant  to  him  for  what  it  may  com- 
mand, however  erroneous  the  judgment  upon  which  it  issued, 
provided  it  did  not  exceed  the  limits  of  its  jurisdiction  as  to 
the  subject-matter  of  adjudication. 

For  anything  that  appears  from  the  plaintiff's  declaration  in 
this  case,  the  action  before  the  justice  may  have  been  for  slan- 
der, or  some  other  matter  not  cognizable  before  a  justice,  and 
if  so,  the  constable  was  not  bound  to  execute  the  execution  or 
capias.  The  defendant's  demurrer  to  the  plaintiff's  de^ara- 
tion  was  therefore  properly  sustained  by  the  Circuit  Court, 
and  the  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


ASAHEL    HANNUM,    appellant,   v.  ELIAS  THOMPSON, 

appellee. 

Appeal  from  Putnam. 

A  summons  not  under  seal,  issued  from  the  Circuit  Court,  should  be  quashed 
on  motion  in  that  Court. 

CITED:    12  111.  233.    See  post  395;  2  Gilin.  166. 

237 


238  VANDALIA. 


Ogle  v.  Coffey. 


E.  EDDY,  for  the  appellant. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court : 
This  is  an  action  of  trespass  on  the  case  brought  by  Elias 
Thompson  against  Asahel  Ilannum,  in  the  Circuit  Court  of 
Putnam  county.  The  judgment  was  rendered  in  favor  of  the 
plaintiff,  against  the  defendant,  in  the  Circuit  Court,  for  one 
hundred  dollars.  To  reverse  the  decision,  the  defendant, 
Asahel  Ilannum,  has  brought  the  cause  to  this  Court  by  ap- 
peal. It  is  not  necessary  to  notice  but  one  point  in 
[*239]  the  case.  It  anpeai-s  from  the  record  *that  the  clerk 
of  the  Circuit  Court  had  omitted  to  put  his  seal  to  the 
original  summons.  The  defendant  by  his  counsel  moved  the 
Court  to  quash  the  summons,  for  want  of  a  seal  to  it ;  which 
motion  was  overruled  by  the  Court.  The  Court  erred  in  re- 
fusing to  quash  the  summons.  By  the  practice  act  (R.  L. 
487 ;  Gale's  Stat.  529),  it  is  provided  that  the  first  process 
shall  be  a  summons,  etc.,  which  summons  shall  be  issued  under 
the  seal  of  the  Court,  etc.  For  which  error  the  judgment  of 
the  Circuit  Court  is  reversed  with  costs. 

Judgment  reversed. 


WILLIAM  OGLE,  plaintiff  in  error,  v.  ANANIAS  COFFEY, 
who  sues  for  the  use  of  John  Beck,  defendant  in 
error. 

Error  to  Madison. 

The  return  of  a  sheriff  should  state  the  manner  in  which  the  process  was  ex- 
ecuted. "  Executed  Oct.  18th,  1832,  as  commanded  within,"  is  not  a  suffi- 
cient return  to  a  summons. 

J.  B.  THOMAS  and  D.  PRICKETT,  for  the  plaintiff  in  error. 
J.  SEMPLE,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
^  This  was  an  action  of  debt  on  a  judgment  rendered  in  the 
State  of  Kentucky.     Judgment  was  rendered  by  default  in  the 
Madison  Circuit  Court. 

The  principal  error  assigned  is  the  want  of  personal  service 
of  the  summons  on  the  defendant.  The  return  of  the  sheriff 

CITED:    16  111.  300;  24  111.  228;  27  111.  363. 
Distinguished,  20  111.  91  j  57  111.  82.  ; 

238 


DECEMBER  TEEM,  1835.  239 

Bentley  v.  Brownson. 

is  not  in  comp!  iance  with  the  provision  of  the  law  directing 
the  manner  of  making  the  service  and  return  by  the  sheriff. 
The  return  of  the  sheriff  is,  u  Executed  Oct.  18th,  1832,  as 
commanded  within." 

Whether  the  date  specified  is  intended  for  the  date  of  the 
day  of  service,  or  is  the  day  on  which  the  summons  is  returned, 
is  wholly  uncertain.  The  manner  of  making  the  service  is  still 
more  doubtful.  Whether  it  was  by.  reading  the  summons  to 
the  defendant  or  by  delivering  a  copy,  is  left  to  conjecture, 
and  it  is  impossible  to  say  which  course  was  adopted,  or 
whether  either  was  pursued. 

The  case  falls  directly  within  the  rule  laid  down  in  the  cases 
of  Wilson  v.  Greatkouse,  and  Olemson  and  Hunter  v.  ffamm, 
decided  in  June  term,  1835.  (Ante  174,  176.) 

The  judgment  is  reversed  with  costs. 

Judgment  reversed. 

LOCKWOOD  and  BROWNE,  Justices,  gave  no  opinion  in  his 
case,  not  being  present  at  the  argument  of  the  cause. 


*THOMAS  BENTLEY,  plaintiff  in  error,  v.  JOHN     [*240] 
DOE,  exdem.  MIRON  K.  BROWNSON,  defend- 
ant in  error. 

Error  to  Morgan. 

In  an  action  of  ejectment,  where  the  judgment  of  the  Circuit  Court  is  for 
premises  not  described  in  the  declaration,  the  judgment  will  be  reversed. 

M.  MCDONNELL,  for  the  plaintiff  in  error. 
WM.  THOMAS,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  ejectment.     The  declaration  contains  a 
demise  of  certain  premises,  described  as  lots  of  ground  in  the 
town  of  Naples,  by  numbers  twenty-live  in  block  number  nine, 
and  six  in  block  number  nine,  with  their  appurtenances. 

On  the  plea  of  not  guiity,  the  case  was  submitted  to  the  de- 
cision of  the  Circuit  Court,  without  the  intervention  of  a  jury, 
on  the  evidence  adduced  by  the  parties.  By  the  record  it  ap- 
pears that  the  Court  found  the  defendant  guilty  of  the  tres- 
pass and  ejectment,  as  to  lot  number  five  in  block  number  nine, 
upon  which  judgment  was  entered  for  the  lessor  of  the  plaint- 
iff for  the  premises  described  in  the  finding.  Among  a  variety 


2-1  •>  YANDALIA. 


Vanlandingham  v.  Lowery. 


of  errors  assigned  under  the  decision  of  the  Circuit  Court,  ap- 
pearing by  the  bill  of  exceptions  taken  in  the  cause,  it  is 
assigned  for  error,  that  the  finding  and  judgment  is  for  a  lot 
not  described  in  the  declaration  of  the  plaintiff. 

The  lots  in  the  declaration  are  described  as  number.'-, 
twenty-five  and  six.  Consequently  the  finding  and  judgment 
are  for  premises  not  described,  nor  in  any  way  the  subject 
of  controversy.  It  is  possible  that  the  record  may  have  been 
in  this  particular  erroneously  transcribed,  but  it  can  not  be 
known  how  this  is. 

The  judgment  of  the  Circuit  Court  is  reversed  and  the  cause 
remanded,  with  instructions  to  award  a  venire  de  now. 

The  plaintiff  in  error  recovers  his  costs. 

Judgment  reversed. 


OLIVER   C.  VANLANDINGHAM,  appellant,  v.  THOMAS 
LOWERY,  appellee. 

Appeal  from  Gallatin. 

REFERENCE — PRACTICE. — Where  a  cause  has  been  referred  by  a  rule  of 
Court,  it  is  incumbent  on  the  party  objecting  to  the  report  of  the 
[*241]     referees  to  show  by  affidavit  that  some  *irregularity  has  occurred.     In 
the  absence  of  such  proof,  their  proceedings  will  be  deemed  to  have 
been  regular.     It  is  to  be  presumed  that  the  requisite  forms  Lave  been  ob- 
served, in  a  case  like  the  present,  without  a  recital. 

JUDGMENTS  were  rendered  in  two  causes  between  the  same 
parties,  at  the  October  term  of  the  Gallatin  Circuit  Court, 
the  Hon.  Justin  Harlan  presiding,  in  favor  of  the  defendant, 
Lowery.  The  plaintiff  appealed  to  this  Court  and  assigned  the 
same  errors  in  each  case. 

H.  EDDY,  for  the  appellant. 
D.  J.  BAKEE,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
These  two  actions  were  instituted  in  the  Circuit  Court  of 
Gallatin,  and  were  referred  by  the  mutual  agreement  of  the  par- 
ties, under  the  following  stipulation  :  "  These  two  cashes  are,  by 
consent  of  parties,  referred  to  a  jury  of  twelve  disinterested 
men  to  be  summoned  by  the  sheriff  or  any  constable,  to  meet  at 
some  convenient  place  in  Shawneetown,  at  such  time  after  the 
Circuit  is  over  as  either  party  or  attorney  shall  fix,  and  give 
the  other  one  week's  notice  of  said  jury,  to  hear  evidence  and 
decide  each  case  separately;  and  the  said  jurors,  and  all 


DECEMBEK  TEEM,  1835.  241 

Vanlandingham  v.  Lowery. 

witnesses,  shall  be  sworn  by  some  justice  of  the  peace,  and  the 
verdict  of  said  jury  shall  be  returned  to  the  Court,  and  shall 
form  the  judgment  of  this  Court."  This  order  was  renewed 
at  a  subsequent  term  not  having  been  acted  upon.  After  which, 
both  cases  were  tried  and  verdicts  rendered  in  each  case  under 
said  rule.  When  the  verdicts  were  presented  to  the  Circuit 
Court,  objections  were  raised  to  the  entry  of  judgments  on 
those  verdicts  ;  but  we  can  gather  from  no  part  of  the  record 
what  those  objections  were.  There  is  nothing  in  the  record 
showing  the  least  departure  from  the  agreement  of  the  parties 
as  to  the  manner  in  which  the  cases  were  to  be  decided. 

If  the  agreement  had  not  been  adhered  to  in  any  of  its  essen- 
tial terms,  the  party  dissatisfied  with  the  proceedings  had, 
should  have  made  the  departures  appear  by  affidavit  of  the 
facts,  and  have  then  moved  the  Circuit  Court  to  have  set 
aside  the  proceedings  had.  The  Circuit  Court  was  correct  in 
presuming  that  the  terms  of  the  rule  of  reference  had  been 
observed,  as  there  was  nothing  in  the  return  of  the  verdict  of 
the  twelve  persons  selected  to  try  the  cause,  showing  any  ir- 
regularity. It  can  not,  I  think,  be  contended,  that  the  pres- 
ent cases  were  lef erred  under  our  statute,  but  that  the  parties 
chose  to  adopt  the  particular  mode  agreed  on  for  their  own 
convenience.  As  they  sought  this  course  there  are  many 
reasons  why  the  Circuit  Court  should  not  have  disturbed  the 
proceedings,  unless  they  had  evidence  of  a  direct  depart- 
ure from  the  terms  of  the  agreement,  which  resulted 
[*242]  *in  injustice  to  the  party  complaining  of  the  depart- 
ure. If  there  was  anything  of  this  kind  it  was  dehors 
the  record,  and  it  became  the  duty  of  the  complaining  party 
to  present  it  to  the  Court  in  a  tangible  shape,  so  that  it  could 
judge  of  the  necessity  and  propriety  of  vacating  the  proceed- 
ings had.  The  voluntary  agreement  of  the  parties  should  be 
carried  out  in  good  faith,  and  no  court  should  lend  a  willing 
ear  to  objections  of  a  technical  character  to  annul  a  proceeding 
voluntarily  had,  where  no  injustice  is  shown  to  have  arisen, 
and  where  none  can  be  fairly  presumed.  The  forms  to  be 
observed  in  summoning  jurors,  swearing  them  and  the  wit- 
nesses, and  giving  notice,  are  presumed  in  a  case  like  the 
present,  without  a  recital,  to  have  been  done,  and  the  more  so 
as  either  party  had  the  means  of  seeing  it  done. 

It  was  the  interest  of  both  parties  to  see  that  the  proceed- 
ings were  regular,  and  this  Court  can  not,  in  the  absence 
of  anything  in  the  record  to  the  contrary,  presume  differ- 
ently. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

VOL.  1-16  241 


242  VANDALIA. 

Eeavis  t?  Reavis. 


NANCY  REAVIS,   plaintiff  in   error,  v.  ISHAM  REAVIS 
defendant  in  error. 

Error  to  Bond. 

DECRKE  OF  DIVORCE — ALIMONY — COSTS. — On  a  bill  filed  alleging  a  de- 
sertion for  more  than  two  years,  and  answer  confessing  the  desertion,  but 
justifying  it  on  account  of  repeated  cruelty  on  the  part  of  the  complainant, 
the  jury  having  found  the  charge  of  desertion  to  be  true,  as  alleged  in. 
the  bill,  the  Court  ordered  a  decree  that  the  bands  of  matrimony  be  dis- 
solved, and  that  alimony  be  allowed  to  the  respondent  for  the  support  of 
herself  and  child,  and  that  the  cause  be  continued  to  the  next  term  of  the 
Court,  for  the  purpose  of  inquiring  into  the  amount  proper  to  be  allowed. 
At  the  next  term  of  the  Court,  the  same  evidence  was  admitted,  on  the  hear- 
ing of  the  question  in  relation  to  the  alimo^v,  which  had  been  admitted  on 
the  hearing  of  the  application  for  divorce,  tho  igh  objected  to  by  respondent; 
and  a  decree  for  one  cent  alimony,  and  t!  at  e  ich  party  should  pay  the  costs 
incurred  by  each,  on  the  application  for  luimony:  Held  that  said  testimo- 
ny must  have  been  irrelevant  to  an  inquiry  on  the  question  of  alimony,  the 
only  question  remaining  to  be  decided,  and  that  it  was  error  to  admit  the 
same ;  and  that  the  allowance  of  a  nominal  amount  of  alimony  was  a  virtual 
rescinding  of  the  judgment  of  the  Circuit  Court  at  the  previous  term. 

The  final  judgment  of  the  Court  should  have  decreed  a  yearly  allowance 
commensurate  to  the  support  of  the  wife  and  child,  in  proportion  to  the 
husband's  ability,  and  her  condition  in  life. 

The  order  that  the  wife  should  pay  costs  was  also  erroneous. 

THIS  was  a  bill  for  divorce,  filed  by  Isham  Reavis,  against 
his  wife,  Nancy,  setting  forth  for  cause,  desertion.  There  was 
a  verdict  for  complainant,  and  thereupon  the  Court  directed 
the  following  entry  to  be  made  :  "  Ordered  that  the 
[*2i3]  bands  of  ^matrimony  heretofore  existing  in  this, 
cause,  between  the  complainant  and  the  respondent 
be  dissolved,  and  that  alimony  be  allowed  to  the  respondent 
for  the  maintenance  of  herself  and  child,  the  issue  of  said 
marriage,  and  that  the  amount  so  to  be  allowed  be  inquired  of 
by  evidence  to  be  heard  at  next  term,  until  which  time  the 
cause  is  continued." 

At  the  next  term  of  the  Court,  to  wit,  at  the  May  term 
1835,  the  Hon.  Thomas  Ford  presiding,  such  proceedings 
were  had  that  the  following  bills  of  exceptions  were  allowed, 
to  wit :  "  Isham  Reams  v.  J$an<ty  Reams,  on  application  for 
alimony. 

The  parties  appeared,  and  the  respondent  introduced  proof 
of  the  value  of  complainant's  real  and  personal  estate,  and  the 
complainant  thereupon  introduced  the  evidence  of  the  wit- 
nesses which  had  been  heard  on  the  former  issue  of  divorce 

CITED:    22  111.  429;  54  111.  187;  108  111.  125.     Followed  79  HI.  76. 

212 


DECEMBEE  TEEM,  1835.  243 

Reavis  v.  Reavis. 

between  the  same  parties  at  the  last  term,  to  which  the  re-' 
spondent  objected,  and  declined  examining  the  said  testimony  ; 
but  the  Court  admitted  the  same,  and  now  here  proceeding  to 
hear  and  determine  said  issue  for  alimony,  does  order,  ad- 
judge, and  decree  that  the  said  Nancy  Eeavis  recover  alimony 
to  the  amount  of  one  cent,  and  that  each  party  pay  the  cost 
incurred  by  each." 

Nancy  Keavis  introduced  Peter  Hubbard  to  prove  the 
amount  of  real  and  personal  estate  which  the  said  Isham 
owned,  who  stated  that  he  had  made  an  estimate  of  his  real 
and  personal  estate,  and  estimated  it  to  amount  to  two  thou- 
sand ono  hundred  and  forty  dollars. 

John  Hopton  agreed  with  Peter  Hubbard  in  his  estimate. 
No  title  papers  were  shown,  nor  any  evidence  that  Eeavis  had 
sold  any  of  his  farms. 

Complainant  offered  to  prove  the  same  facts,  by  the  same 
witnesses,  which  had  formerly  been  proved  on  the  trial  of  the 
issue  for  a  divorce,  to  which  respondent  objected,  but  the 
court  overruled  the  objection  and  admitted  the  testimony,  to 
which  respondent  excepted. 

JAMES  SKMPMB  and  ALFRED  COWLES,  for  the  plaintiff  in  error, 
made  the  following  points: 

1.  The  Court  under  the  act,  title  Divorce,  E.  L.  233,  234, 
(Gale's  Stat.  249-51)  were  bound  to  allow  reasonable  alimony, 
reference  being  had  to  the  husband's  estate. 

2.  The  6th  section  of  the  statute  is  imperative. 

3.  Although  there  was  a  verdict  for  a  divorce,  yet  there  is 
nothing  in  the  statute  forbidding  or'  prohibiting  allowance  of 
alimony. 

A.  W.  SNYDER  and  J.  "W".  WHITNEY,  for  the  defendant  in 
error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
*This  was  a  proceeding  in  equity  under  the  statute     [*244] 
fora  divorce,  for  willful   and  continued  desertion  of 
the  wife  of  complainant.     The  defendant  answered  the  bill 
admitting  the  desertion,  but  alleging  as  a  justification  therefor 
the  extreme  and  repeated  cruelty,  and  the  absence  of  the  com- 
plainant, and  his  refusal  to  protect  her  from  the  gross  and 
brutal  insults  of  others  in  his  presence.     The  facts  were  in- 

auired  into  by  a  jury,  and  the  jury  found  a  verdict  in  favor  of 
ic  complainant,  sustaining  the   charge  of  desertion ;  upbn 
which   the  Circuit  Court  entered  up  the  following  decree  : 
"  Ordered,  that  the  bands  of  matrimony  heretofore  existing  in 

243 


244  VANDALIA. 


Reavis  v.  Beavis. 


this  cause,  between  the  complainant  and  respondent  be  dis- 
solved, and  th.it  alimony  be  allowed  to  the  respondent  for 
her  maintenance  and  that  of  her  child,  the  issue  of  said  mar- 
riage, and  that  the  amount  so  to  be  allowed  be  inquired  of  by 
evidence  to  be  heard  at  the  next  term,  until  which  time  the 
cause  is  continued." 

At  the  next  term  tlie  Circuit  Court  entered  np  judgment  in 
the  cause  for  one  cent  alimony,  and  decreed  that  defendant 
should  pay  her  proportion  of  the  costs  on  the  hearing  of  the 
application. 

The  defendant  brought  the  cause  to  this  Court,  and  now  as- 
signs for  error : 

1st.  That  the  Court  erred  in  allowing  nominal  alimony, 
when  it  was  shown  that  the  complainant  at  the  time  was  pos- 
sessed of  large  real  and  personal  estate. 

2d.  That  the  Court  erred  in  admitting  the  same  testimony 
which  had  been  heard  on  the  previous  issue  of  divorce  or  suit, 
at  a  term  subsequent  to  the  time  when  the  jury  found  the 
issue,  against  the  objections  of  the  defendant. 

3d.  That  the  Court  decided  that  respondent  should  pay 
costs. 

In  deciding  upon  the  grounds  of  error,  it  will  be  proper  to 
look  to  the  decree  made  in  the  cause  at  the  term  when  the 
bands  of  matrimony  were  dissolved.  By  the  order  the  Circuit 
Court  doubtless  iound  itself  compelled  io  award  the  order  for 
the  dissolution  of  the  bands  of  matrimony  ;  the  jury  found 
the  fact  of  willful  and  continued  desertion ;  but  at  the  same 
time  it  appears  that  it  felt  itself  equally  bound  to  order  that 
sufficient  alimony  should  be  awarded  to  the  respondent  for  her 
support  and  that  of  her  infant  child,  the  issue  of  the  marriage, 
but  deferred  the  inquiry  therein  until  the  next  term,  when 
the  amount  was  to  be  determined  by  evidence. 

This  order  was  doubtless  also  made  in  pursuance  of  the  pro- 
visions of  the  6th  section  (K.  L.  234 ;  Gale's  Stat.  251)  of  the 
act  concerning  divorces,  approved  31st  January,  1827,  which 
declares  "  that  when  a  divorce  shall  be  decreed,  it  shall  and 
may  be  lawful  for  the  Court  to  make  such  order  touch - 
[*245]  ing  the  alimony  and  maintenance  of  the  wife,  *the 
care,  custody  and  support  of  the  children,  or  any  of 
them,  as  from  the  circumstances  of  the  parties,  and  the  na- 
ture of  the  case  shall  be  n't,  reasonable  and  just.  And  in  case 
the  wife  is  complainant,  to  order  the  defendant  to  give  reason- 
able security  for  the  performance  of  such  order;  and  may, 
on  application,  from  time  to  time  make  such  alterations  in  the 
allowance  of  alimony  and  maintenance,  as  shall  appear  reason- 
able and  proper." 

244 


DECEMBER  TERM,  1835.  245 

Reavis  v.  Reavis. 

From  the  bill  of  exceptions  it  appears  that  the  complainant 
was  the  owner  of  considerable  real  and  personal  estate,  as  was 
proved  on  the  hearing ;  but  it  also  appears  that  on  this  inquiry 
the  Circuit  Court  permitted  the  complainant  to  introduce  the 
,  same  witnesses  and  prove  the  same  facts  which  had  formerly 
been  proved  on  the  trial  of  the  issue  for  a  divorce,  to  which  the 
respondent  objected  and  excepted  to  the  opinion  of  the  Court 
in  admitting  such  testimony. 

The  first  inquiry  presented  on  examining  the  grounds  of 
error  assigned,  seems  naturally  to  be,  what  had  the  Circuit 
Court  decided,  on  making  the  order  for  the  dissolution  of  the 
bands  of  matrimony,  and  decreeing  alimony?  Must  it  not 
have  been  that  although  the  marriage  was  dissolved,  still  under 
the  provisions  of  the  law,  the  wife  was  entitled  to  a  fair  and 
reasonable  allowance  for  the  support  of  herself  and  child, 
and  that  as  it  had  not  then  evidence  by  which  it  could  judge 
of  the  means  and  ability  of  the  complainant  to  afford  such 
support,  the  cause  was  continued  to  the  next  term,  for  the 
production  of  such  evidence?  It  had  heard  the  merits  of 
complainant's  prayer,  and  on  the  trial  had  heard  the  whole 
grounds  of  the  causes  of  complaint,  and  of  attempted  justifica- 
tion for  the  abandonment  charged  and  not  denied  ;  and  with 
the  full  knowledge  necessarily  of  the  whole  grounds  occupied 
by  the  parties,  had  come  to  the  determination,  that  although 
the  complainant  was  entitled  to  the  relief  prayed,  yet,  equally 
so,  the  wife  and  child  were  entitled  to  a  support,  which  it  ad- 
judged the  complainant  should  pay.  If  this  view  of  the  cause 
thus  far  be  just,  and  to  it  no  objection  is  perceived,  then  it 
would  seem  to  follow  as  a  necessary  consequence,  that  the  only 
subject  of  inquiry,  was  the  condition  of  the  parties  in  life,  and 
the  means  and  ability  of  the  complainant  to  pay  such  allow- 
ance as  the  Court  should  consider  fit,  reasonable,  and  just,  and 
that  evidence  foreign  to  such  inquiry  should  be  rejected. 

It  will  be  perceived  that  in  determining  that  alimony  should 
be  allowed,  the  Court  had  necessarily  passed  on  the  conduct 
of  the  wife,  and  had  by  such  order  necessarily  decided  that 
she  had  not,  let  her  conduct  have  been  what  it  might,  forfeited 
her  right  to  that  protection  and  support  which  the  law  allowed, 
and  which  the  Court  had  most  undoubtedly  considered  her 
entitled  to;  but  the  measure  or  extent  of  the  allowance  was  to 
be  ascertained  by  evidence  of  the  capacity  of  the  complainant 
to  answer. 

*The  testimony,  then,  which  was  admitted  relating    [*246] 
to  the  original  grounds  of  divorce,  and  which  had 
been   given    on   the    issiie    of    desertion,    must   have   been 
irrelevant  to  an  inquiry  on  the  question  of  allowance  of  ali- 

215 


•246  YANDALIA. 


Reavis  v.  Beavis. 


niony.  It  must,  I  again  repeat,  be  borne  in  mind,  that  the 
conduct  of  the  wife  had  already  been  placed  before  the  Court 
on  the  first  inquiry  before  the  Court  and  jury,  and  could  not 
have  been  the  subject  of  a  second  inquiry,  because  it  was  by 
no  means  necessary  to  a  decision  of  the  question  as  to  the 
allowance  of  alimony.  What  would  be  a  proper  allowance  to 
a  person  in  her  situation  in  life,  and  how  much  it  would  take 
to  afford  her  and  her  child  a  reasonable  support,  and  the  ability 
of  the  complainant  to  pay  that  sum,  or  as  near  to  it  as  his 
means  would  enable  him,  were  surely  the  only  questions  in  a 
case  like  the  present.  The  amount  to  enable  her  to  procure 
the  necessary  food  and  clothing  for  her  child  could  not  be 
made  to  depend  on  her  previous  conduct,  after  it  had  been 
decided  that  to  such  support  and  clothing  she  was  entitled ; 
for  that  would  be  to  make  the  amount  of  the  necessaries  of 
life,  requisite  for  her  suDport,  depend  on  her  personal  conduct 
before  the  dissolution  of  the  marriage,  and  not  the  extent  of 
those  means  indispensable  for  existence.  Whether  this  view 
be  correct  or  not,  still  there  is  a  reason  equally  forcible,  indeed 
more  so,  which  shows  the  injustice  of  the  admission  of  the 
testimony  objected  to. 

I  think  it  but  rational  to  suppose  that  the  introduction  of 
the  evidence  was  not  only  calculated  to  take  the  party  by  sur- 
prise, but  that  it  must  have  had  that  effect.  In  an  inquiry  of 
the  kind,  could  it  have  occurred  to  the  party  that  all  the 
former  causes  of  complaint  were  to  be  again  heard  ?  I  should 
greatly  doubt  whether  the  most  intelligent  mind  would  have 
supposed  that  the  desertion,  with  all  the  accompanying  acts, 
would  be  again  a  matter  of  investigation  and  decision.  If  not, 
how  would  the  party  be  prepared  to  introduce  rebutting  and 
explanatory  testimony  ?  And  would  not  the  introduction  of 
such  evidence,  uncontradicted  and  unexplained,  have  had  a 
most  unfavorable  effect  on  the  mind  of  the  judge  deciding 
\he  case  of  alimony,  if  he  had  never  heard  the  whole  evidence 
on  the  trial  before  the  Court  and  jury,  for  the  divorce,  as 
seems  to  have  been  the  fact  in  the  present  case  ?  Its  conse- 
tniences  can  not  be  calculated,  and  it  must  be  owing  to  this  cause 
tnat  the  order  for  an  allowance  of  one  cent  was  made ;  it  can 
in  my  judgment  be  accounted  for  from  no  other  cause.  It  is 
not  intended  to  say  that  the  whole  conduct  of  the  wife  is  not 
to  be  taken  into  consideration  on  determining  the  question  of 
an  allowance  of  alimony,  but  I  intend  to  say  that  when  that 
conduct  has  once  been  the  subject  of  an  examination,  and  an 
order  made  to  merely  ascertain  the  condition  of  the  husband 
and  his  pecuniary  ability  to  afford  the  wife  amain  e 
[*247]  nance,  it  is  erroneous  and  *improper  to  receive  again 

216 


DECEMBEK  TEEM,  1835.  247 

Reavis  «.  Reavis. 

testimony  w'lich  necessarily  must  be  in  the  nature  of  ex  parte 
proof.  Suppose  the  Court  had  ordered  a  master  to  have  re- 
ported the  amount  of  the  complainant's  real  and  personal 
estate,  would  he  have  for  a  moment  felt  himself  justified 
in  receiving  evidence  that  the  wife  had  deserted,  or  done  any 
other  act  charged  in  the  bill !  Unquestionably  not ;  and  yet 
this  interlocutory  order  of  the  Circuit  Court  meant  no  more, 
in  my  judgment,  than  such  an  order.  Shall,  then,  the  modes 
of  arriving  at  the  intended  result,  change  the  character  of  the 
evidence  to  be  adduced  ?  It  can  not  be;  and  hence,  I  arrive  at 
the  conclusion  that  it  was  improperly  received.  But  is  there 
nothing  in  this  nominal  allowance  of  alimony,  which  at  once 
shows  that  it  was  a  virtual  rescinding  of  the  judgment  of  the 
Circuit  Court?  Did  the  Circuit  Court,  when  it  made  that 
order,  intend  to  keep  the  word  of  promise  to  the  respondent's 
ear,  and  break  it  to  her  hopes  ?  Did  it  intend  to  trifle  with 
the  justice  and  equity  of  the  laws  of  the  country,  and  make  its 
own  decrees  a  mere  phantom,  which  should  elude  the  grasp  of 
the  respondent,  and  prove  an  idle  and  delusive  dream?  If 
words  are  not  mere  empty  sounds,  if  they  mean  anything,  then 
surely  in  the  words  of  the  decree,  the  respondent  was  to  be 
allowed  a  sum  sufficient  for  the  support  and  maintenance  of 
herself  and  child,  if,  on  proof  of  the  ability  of  the  compl  ain- 
ant,  he  had  the  property  out  of  which  such  an  allowance  as 
was  fit,  reasonable  and  just,  could  be  made.  That  he  had  such 
means  abundantly  appears  from  the  proof;  and  why  that 
allowance  was  not  made,  can  only  be  inferred  from  the  intro- 
duction of  the  testimony  objected  to  by  the  respondent.  This 
order  allowing  one  cent  is  most  unjust  in  its  consequences, 
because  it  deprives  the  infant  child  of  the  protection  and  nurt- 
ure intended  to  be  given  under  the  decree.  This  part  of  the 
case  must  certainly  have  escaped  the  observation  of  the  Court, 
or  it  would  not  certainly,  I  presume,  have  made  an  order  from 
wh'ch  such  consequences  must  inevitably  flow.  The  order, 
then,  for  this  reason  alone,  was  an  entire  departure  from  the 
former  adjudication  of  the  Court,  and  directly  repugnant 
thereto,  and  necessarily  annulled,  for  every  practical  pur- 
pose, the  judgment  of  tne  Court.  The  order  decreeing  costs 
against  the  wife  was  also  clearly  erroneous.  I  can  see  no 
view  in  which  the  case  can  be  examined  that  does  not  show 
the  entire  incorrectness  of  the  final  judgment  on  the  allowance 
of  alimony.  It  should  have  been  a  yearly  allowance  commen- 
surate to  the  support  of  the  wife  and  child,  in  proportion  to 
the  ability  of  the  husband  and  her  condition  in  life;  what  that 
ability  and  condition  might  be  would  be  subject  of  inquiry  by 
evidence,  and  when  ascertained  should  be  so  declared. 

247 


247  YANDALIA. 


Reavis  v.  Beavis. 


I  am  of  opinion  that  the  judgment  of  the  Circuit 
[*248]  Court  should  *be  reversed,  with  costs,  and  the  cause 
remanded  to  that  Court  with  instructions  to  proceed 
in  the  cause,  and  allow  yearly,  such  alimony  for  the  support  of 
the  respondent  and  her  child,  as  shall,  from  the  evidence  to  be 
adduced  and  the  circumstances  of  the  parties,  be  fit,  reason- 
able and  just. 

Judgment  reversed. 

248 


DECISIONS 


SUPREME  COURT 


OF  THE 


STATE  OF  ILLINOIS. 


DELIVERED 


JUNE  TERM,  1836,  AT  VANDALIA., 

Note.    At  this  term  Justice  SMITH  was  not  present. 

EMANUEL  J.  LEIGH,  appellant,  v.  SARAH  MASON,  ad- 
ministratrix, and  PARIS  MASON,  administrator  of 
James  Mason,  deceased,  appellees. 

Appeal  front  Macoupin. 

JURISDICTION. — A  justice  of  the  peace  has  no  jurisdiction  of  a  suit  for  a 
demand  exceeding  twenty  dollars,  in  which  an  administrator  is  a  party,  ex- 
cept for  debts  due  for  property  purchased  at  an  administrator's  sale. 

If  a  court  has  no  jurisdiction  of  the  subject-matter  of  a  suit,  consent  of  par- 
ties can  never  give  it.a 

THIS  cause  was  heard  in  the  Circuit  Court,  at  the  April  term, 
1835,  before  the  Hon.  Stephen  T.  Logan,  and  a  judgment  for 
$53.20  rendered  in  favor  of  the  appellees.  The  suit  was 
brought  on  a  note  of  hand  executed  by  the  appellant  to  the 
appellees.  The  note  did  not  specify  for  what  it  was  given. 

A.  P.  FIELD,  for  the  appellant. 

CITED :  18  111.  30.    See  37  111.  428. 

"Jurisdiction — Consent  can  not  give  jurisdiction  of  the  subject-matter. 
In  addition  to  the  above  case  of  Leigh  r.  Mason,  see  Foley  r.  People,  Breese 
57;  People  v.  Royal,  post  557;  Ginn  r.  Rogers,  4  Gilm.  131;  Peak  v.  People, 
71  111.  278;  Hoagland  v.  Creed,  81  111.  506;  Fahs  v.  Darling,  82  111.  142; 
Cobb  v.  People,  84  111.  511;  Fleischman  v.  Walker,  91  111.  318. 


249 


249  YANDALIA. 


Eastern  et  al.  t>.  Altum. 


H.  EDDY  and  S.  T.  SAWYER,  for  the  appellees. 

BKOWNE,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  debt  commenced  in  Macoupin  county, 

before  a  justice  of  the  peace,  to  recover  a  judgment  in  favor  of 

administrators  against  the  defendant  in  the  Court  below,  for  a 

sum  exceeding  twenty  dollars.    On  the  trial  before  the 

[*260]    justice  of  *the  peace,  judgment  was  given  in  favor  of 

the  administrators,  and  on  the  appeal  in  the  said  cause 

to  the  Circuit  Court,  the  judgment  of  said  justice  was  affirmed; 

to  reverse  which,  Leigh  has  brought  the  cause  by  appeal  to 

this  Court.     It  is  clear  from  the  statute  of  1833  (R.  L.  415  ; 

Gale's  Stat.  425)  that  this  is  not  one  of  those  cases  in  which 

justices  of  the  peace  can  exercise  jurisdiction.     If  a  court  has 

no  jurisdiction  of  the  subject-matter,  consent  of  parties  never 

can  give  it. 

Judgment  is  reversed  with  costs. 

Judgment  reversed.  • 


POMEROY  EASTON,  HARRY  WILTON,  JOHN  S.  CARRI- 
GAN,  plaintiffs  in  error,  v.  JAMES  ALTUM,  defendant 
in  error. 

Error  to  Clinton. 

Irregularity  of  process,  whether  the  process  be  void  or  voidable,  is  cured 
by  appearance  without  objection. 

The  want  of  a  seal  to  a  summons  can  not  be  taken  advantage  of  after  an 
appearance. 

A.  COWLES,  for  the  plaintiffs  in  error,  cited  R.  L.  158  (Gale's 
Stat.  176) ;  2  Johns.  Dig.  148,  title  New  Trial,  §  78 ;  18  Johns. 
212;  2  Johns.  Dig.  252,  title  Practice;  19  Johns.  170;  1  Johns. 
Dig.  title,  Amendment,  41;  Breese  3,  and  notes. 

H.  EDDY,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  debt  brought  in  the  Clinton  Circuit 

CITKD:  20  111.  516:  61  111.  496;  2  Scam.  264;  3  Scam.  50;  17  111.  237; 
2  Scam.  464:  16  111.  356. 
See  ante  238. 
250 


JUNE  TERM,  1836.  250 

Easton  et  al.  v.  Altum. 

Court,   by  the   defendant  in   error,  against  the  plaintiffs   in 
error,  on  a  sealed  promissory  note. 

The  summons  was  returnable  at  the  April  term,  1834,  of  the 
said  Court ;  at  which  term  it  was  returned  served  on  the  de- 
fendants  below,  and  they  appeared  by  their  attorney,  and  filed 
a  demurrer  to  the  declaration.  The  plaintiff  below  confessed 
the  demurrer  and  obtained  leave  of  the  Court  to  amend  his 
declaration,  and  the  cause  was  continued  until  the  September 
term,  1834. 

At  the  September  term,  the  defendants  below  were  duly 
called,  but  made  default,  and  judgment  was  rendered  for  the 
plaintiff  below,  for  his  debt  and  damages.  The  error  relied 
on  to  reverse  this  judgment,  is,  that  there  was  no  seal  to  the 
summons.  Can  such  an  irregularity  be  assigned  for  error,  after 
appearance  in  the  Circuit  Court,  without  objection? 

The  authorities  are  numerous  and  explicit,  that  ir- 
regularity of  *process,  whether  the  process  be  void  [*251] 
or  voidable,  is  cured  by  appearance  without  ob- 
jection. In  1  Paine  and  Duer's  Practice,  366,  it  is  laid  down 
that  "It  is  the  universal  practice  of  the  courts,  that  the  appli- 
cation to  set  aside  proceedings  for  irregularity  should  be  made 
as  early  as  possible,  or,  as  it  is  commonly  said,  in  the  first  in- 
stance. And  where  there  has  been  an  irregularity,  if  the  par- 
ty overlook  it  and  take  subsequent  steps  in  the  cause,  he  can 
not  revert  back  and  object  to  it."  In  support  of  this  doctrine, 
Paine  and  Duercite  a  number  of  authorities,  both  English  and 
American.  The  same  book  says:  "  It  has  frequently  been  de- 
cided that  a  defendant  can  not  take  advantage  of  any  error  or 
defect  in  the  process,  after  he  has  appeared  to  it,  even  though 
the  process  be  void,  and  the  defendant  at  the  time  was  ig- 
uorant  of  the  defect." 

In  the  Supreme  Court  of  New  York,  in  the  ease  of  Pixley 
v.  Winchell  (7  Cowen,  366)  the  doctrine  is  recognized,  that 
void  process  is  rendered  good  by  appearance,  although  the 
party  and  his  attorney  were  ignorant  of  the  defect  in  the  proc- 
ess. The  case  was  this :  The  capias  ad  respondendum  was  re- 
turnable out  of  term.  The  defendant  put  in  special  bail,  neither 
he  nor  his  attorney  knowing  anything  of  the  irregularity. 
Afterward,  at  the  next  term,  defendant  discovered  the  irregu- 
larity, and  moved  to  set  aside  the  capias.  The  motion  was 
overruled.  The  Court  say  :  "  That  without  deciding  whether 
the  writ  is  absolutely  void,  we  are  clear  that  it  can  not  be  set 
aside  at  this  stage  of  the  cause.  The  defendant  has  taken  a 
step  by  which  he  is  regularly  in  Court,  whether  there  be  any 
process  or  not.  We  will  not  interfere  merely  because  the  j  ar- 
ty acted  in  ignorance  that  the  process  was  void."  And  the 


251  VANDALIA. 


Gilmore  ».  Ballard. 


some  Court,  in  the  case  of  Jenkins  ex  dem.  Culver  v.  Brown 
(4  Cowcn,  550)  permitted  the  plaintiff  to  amend  a  venire,  by 
adding  a  seal,  saying  that  the  omission  of  a  seal  was  errone- 
ous, and  not  void,  and  may  be  amended.  The  Supreme  Court 
of  the  United  States,  in  the  case  of  Knox  and  Crawford  v. 
Summers  and  Thomas  (Peters'  Cond.  E.  670),  decided  that  an 
appearance  by  attorney  cured  all  irregularity  in  the  process. 

From  the  authorities  above  mentioned,  it  evidently  results 
that  the  object  of  process  is  merely  to  bring  the  defendant  in- 
to Court,  and  when  he  is  once  there  without  objection,  he 
waives  all  irregularities  as  to  the  mode  the  plaintiff  has  re- 
sorted to,  to  compel  appearance.  It  is  undoubtedly  true  that 
a  defendant  may  stand  on  all  his  legal  rights,  and  require  all 
the  forms  of  law  to  be  pursued,  before  he  can  be  required  to 
answer  the  plaintiff,  or  he  may  dispense  with  process  alto- 
gether, or  waive  irregular  process  and  come  into  Court,  and  at 
once  proceed  to  the  merits  of  the  cause.  The  defendants  be- 
low by  appearing  and  demurring  to  the  plaintiff's  dec- 
[*252]  laration,  waived  all  objection  to  the  irregularity  *of 
the  process,  and  consequently  the  judgment  must  be 
affirmed  with  costs. 

Judgment  affirmed. 


THOMAS  P.  GILMORE,  plaintiff  in  error,  v.  JOHN  BAL- 
LAKD,  defendant  in  error. 

Error  to  Clay. 

BILL  OP  EXCEPTIONS— TRIAL  BY  COUTH-— PRACTICE.— A  bill  of  exceptions 
will  not  lie  to  the  final  judgment  of  a  Circuit  Court,  where  the  cause  is  tried 
by  the  Court  without  the  intervention  of  a  jury. 

A  bill  of  exceptions  can  not  be  taken  unless  the  exception  be  made  on  the 
trial,  and  it  lies  for  receiving  improper  or  rejecting  proper  testimony,  or  de- 
ciding incorrectly  a  point  of  law. 

The  course  to  be  pursued  in  a  case  tried  by  the  Court  without  a  jury,  where 
the  defendant  supposes  that  the  plaintiff  has  failed  to  support  his  action,  is 
to  move  the  Court  to  nonsuit  the  plaintiff,  or  to  demur  to  the  testimony. 
f  he  does  neither,  and  goes  on  and  gives  evidence,  the  office  of  the  judge  is 
then  completely  merged  into  that  of  a  juror,  and  his  decision,  if  wrong,  can 
only  be  reviewed  in  the  same  manner  as  the  wrong  verdict  of  a  jurv,  to  wit, 
by  application  for  a  new  trial. 

THIS  cause  was  tried  at  the  May  term,  1836,  of  the  Clay 
Circuit  Court,  before  the  Hon.  Justin  Harlan,  and  a  judgment 

CITED:  3  Scam.  63;  17  111.  167. 
2,2 


JUKE  TEEM,  1836.  252 

Gilmore  v.  Ballard. 

for  $39.60  rendered  for  the  plaintiff  in  the  Court  below,  the 
defendant  in  error. 

LEVI  DAVIS  and  FERRIS  FORMAN,  for  the  plaintiff  in  error* 
cited  1  Chit  Plead.  137;  2  Selwyn's  K  P.  520;  12  East,  614; 
13  East,  522;  6  East,  614;  11  East,  210,  et  passim. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  trover  brought  bj  Ballard  against 
Gilmore  in  the  Clay  Circuit  Court,  to  recover  the  value  of  a 
quantity  of  corn  alleged  to  have  been  taken  and  converted  by 
Gilmore.  The  defendant  below  pleaded  not  guilty,  and  the 
cause  was,  by  consent  of  the  parties,  tried  by  the  Court,  with- 
out the  intervention  of  a  jury.  After  all  the  evidence  had 
been  adduced,  both  on  the  part  of  the  plaintiff  below  and  the 
defendant,  the  defendant  moved  the  Court  for  a  judgment 
against  the  plaintiff,  on  the  ground  that  there  was  no  deliv- 
ery of  the  corn  by  Richardson  (a  former  owner  of  the  corn) 
to  the  plaintiff,  which  motion  the  Court  overruled,  and  gave 
judgment  for  the  plaintiff  for  the  value  of  the  corn.  To 
this  opinion  of  the  Court  the  defendant  below  excepted. 

The  only  point  that  it  is  necessary  for  the  Court  to  decide 
is,  whether  after  both  parties  have  given  testimony 
in  a  cause  tried  *by  the  Court  without  a  jury,  either  [*253] 
party  can  except  to  the  judgment  of  the  Court.  This 
Court  in  the  case  of  Clemson  v.  Km/per  (Breese,  162)  correct- 
ly lay  down  the  rule  that  a  bill  of  exceptions  can  not  be  taken 
unless  the  exception  be  made  on  the  trial ;  and  it  lies  for  receiv- 
ing improper  or  rejecting  proper  testimony,  or  deciding  incor- 
rectly a  point  of  law.  In  the  present  case,  the  bill  of  excep- 
tions was  taken  to  the  judgment  of  the  Court  upon  the  facts 
given  in  evidence  by  the  parties.  The  course  to  be  pursued  in 
a  case  tried  by  the  Court  without  a  jury,  is  clearly  pointed  out 
in  the  case  of  Swafford  v.  Dovenor  (ante  165),  decided  at  the 
December  term,  1834,  of  this  Court.  "Whenever  the  defend- 
ant supposes  that  the  plaintiff  has  failed  to  support  his  action, 
he  should  move  the  Court  to  nonsuit  the  plaintiff,  or  demur  to 
the  testimony.  If  he  does  neither,  and  goes  on  and  gives  evi- 
dence, the  office  of  the  judge  is  then  completely  merged  into 
that  of  a  juror.  He  has  only  to  decide  upon  the  weight  of 
testimony;  and  his  decision,  if  wrong,  can  only  be  reviewed 
in  the  same  manner  as  the  wrong  verdict  of  a  jury,  to  wit,  by 
application  for  a  new  trial,  and  consequently  a  bill  of  exceptions 
can  not  be  taken. 

For  this  reason,  the  judgment  of  the  Circuit  Court  must  be 
affirmed  with  costs. 

Judgment  affirmed. 

253 


VANDALIA. 


Whitney  et  nl.  t>.  Turner. 


JAMES  W.  WHITNEY  and  GEORGE/TAYLOR,  plaintiffs  in 
error,  v.  EBENEZER  TURNER,  JR.,  defendant  in  error. 

Error  to  Adams. 

TRESPASS— WHO  PRINCIPALS. — The  doctrine  in  relation  to  trespass  is 
•well  settled  that  there  are  no  accessories;  all  are  principals  who  are  in  any 
wise  concerned  in  the  trespass.  The  person  who  commands  or  approves  is 
equally  guilty  with  the  one  who  performs  the  act. 

Tins  cause  was  tried  at  the  September  term,  1835,  of  the 
Adams  Circuit  Court,  before  the  Hon.  Richard  M.  Young  and 
a  jury,  and  a  verdict  and  judgment  rendered  for  the  defendant 
in  error,  against  the  plaintiffs  in  error,  for  $22.12  and  costs. 
There  was  another  defendant  in  the  Court  below,  who  was  ac- 
quitted on  the  trial. 

J.  "W.  WHITNEY,  in  propria persona,  cited  the  following  au- 
thorities : 

1  Swift's  Digest,  327;  1  Strange,  635,  and  authorities 

[*254]     cited  in  *note  3;  5  Term  R.  648-9;  Cowper,  478;  1 

Chit.  Plead.  362, 168, 170, 182, 187;  Peake's  Ev.  397; 

Tidd's  Pract.  6,  7,  71,  73;  3  East,  598;  Breese,  144;  3  Stark. 

Ev.  1447-8. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  trespass  de  bonis  asportatis  brought  by 
Turner  against  Whitney  and  the  other  defendants  in  the  Cir- 
cuit Court  of  Adams  county.  After  the  testimony  had  been 
adduced,  Whitney,  one  of  the  defendants  who  had  pleaded  not 
guilty,  applied  to  the  Court  to  instruct  the  jury,  that  it  was 
necessary  that  the  trespass  should  be  proved  to  have  been  com- 
mitted by  George  Taylor  and  said  Whitney,  personally,  and 
not  by  command,  before  the  jury  could  find  a  verdict  against 
them ;  but  the  Court  refused  to  give  such  instruction,  and 
stated  it  to  be  the  opinion  of  the  Court,  that  it  was  improper 
so  to  do.  Was  the  refusal  to  give  this  instruction  erroneous? 
The  doctrine  in  relation  to  trespass  is  well  settled,  that  there 
are  no  accessories ;  all  are  principals  who  are  in  any  wise  con- 
cerned in  the  trespass.  The  person  who  commands  or  ap- 
proves is  equally  guilty  with  the  one  who  performs  the  act. 
The  refusal  of  the  Court,  therefore,  to  give  the  instruction, 
was  correct. 

The  judgment  must  be  affirmed  with  costs. 

Judgment  affirmed. 

CITKD:  69  111.  275,  erroneously  cited  as  Dedmanu.  Barber.    See  20  111.  37. 
9M 


JUNE  TEEM,  1836.  254 

Dedman  v.  Barber. 

JOHN  DEDMAN,  appellant,  v.  ROUANTA  BAEBER,  appellee. 

Appeal  from  Hancock. 

JUSTICE  COURT — PRACTICE. — The  obvious  intention  of  all  the  legislation 
•with  respect  to  proceedings  before  justices  of  the  peace,  is  to  simplify  the 
proceedings,  and  dispense  with  all  form  and  technicality  consistent  with  a 
fair  trial  of  causes  upon  their  merits. 

APPEAL  BOND. — On  an  appeal  from  a  justice  of  the  peace  to  the  Circuit 
Court,  if  the  appeal  bond  filed  be  wholly  insufficient,  the  Circuit  Court 
should  allow  a  new  bond  to  be  filed.  It  is  error  to  refuse  an  application  to 
file  such  new  bond. 

THE  appellee  recovered  a  judgment  against  the  appellant 
before  a  justice  of  the  peace  of  iJancock  county,  for  $50  and 
costs  of  suit,  from  which  an  appeal  was  taken  to  the  Circuit 
Court.  At  the  April  term,  1836,  of  the  Court  below,  the  Hon. 
Richard  M.  Young  presiding,  a  motion  was  made  to  dismiss 
the  appeal  for  want  of  a  bond. 

The  bond  executed  by  the  appellant  in  the  Court  below,  re- 
cited that  a  judgment  had  been  rendered  against  the  appellant 
"  in  the  Circuit  Court  of  Hancock  county,"  from  which  an  ap- 
peal had  been  taken  "  to  the  Supreme  Court."     No 
mention  *was  made  in  the  bond,  of  the  judgment  of     [*255] 
the  justice  of  the  peace,  or  of  an  appeal  to  the  Cir- 
cuit Court. 

The  appellant  filed  a  cross-motion  for  leave  to  file  a  new 
bond.  The  Court  overruled  this  motion  and  dismissed  the 
appeal  and  awarded  a  procedendo  to  the  justice.  To  this  de- 
cision of  the  Circuit  Court  the  appellant  excepted  and  ten- 
dered his  bill  of  exceptions,  which  was  signed  and  sealed  by 
the  judge.  From  the  decision  of  the  Circuit  Court  an  ap- 
peal was  taken  to  this  Court. 

J.  "W.  WHITNEY,  L.  DAVIS  and  F.  FORMAN,  for  the  appel- 
lant, cited  E.  L.  395,  §  31. 

S.  T.  SAWYER,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  appeal  taken  by  Dedman  from  the  judgment  of 
a  justice  of  the  peace  to  the  Circuit  Court  and  upon  trial  in 
that  Court,  dismissed  on  account  of  the  informality  and  in- 
sufficiency of  the  appeal  bond.  It  is  not  questioned  but  the 
bond  is  informal  and  insufficient.  It  is  in  the  form  adapted 

CITED:  11  111.  546.    See  12  111.  165. 

265 


VANDALIA. 


Dedman  t>.  Barber. 


to  the  case  of  an  appeal  from  the  Circuit  to  the  Supreme 
Court.  But  it  is  equally  clear  that  the  Court  erred  in-  over- 
ruling the  motion  of  the  appellant  to  permit  him  to  file  a  good 
bond  in  pursuance  of  the  31st  section  (R.  L.  395  ;  Gale's  Stat. 
409)  of  the  "  Act  concerning  Justices  of  the  Peace  and  Con- 
stables" That  act,  after  prescribing  the  mode  of  taking  ap- 
peals from  judgments  of  justices  of  the  peace,  goes  on  and 
declares  that  "If  upon  trial  of  any  appeal  the  bond  required  to 
be  given  by  this  section  shall  be  judged  informal  or  otherwise 
insufficient,  the  party  who  executed  such  bond  shall  in  no  wise 
be  prejudiced  by  reason  of  such  informality  or  insufficiency  : 
Provided,  he  will  in  a  reasonable  time  file  in  Court  a  good  and 
sufficient  bond."  The  present  case,  according  to  my  under- 
standing of  the  object  and  language  of  the  act,  is  precisely  such 
a  one  as  was  intended  to  be  provided  for.  The  appellant  had 
complied  with  all  the  requisitions  of  the  act  up  to  the  execu- 
tion of  the  appeal  bond  and  with  respect  to  that  he  attempted 
a  compliance;  and  by  executing  what  was  intended  to  be  a 
good  bond,  with  such  security  as  was  approved  of  by  the  clerk, 
he  did  all  that  was  required  of  him  until  the  bond  was  pro- 
nounced insufficient  by  the  Court ;  and  even  then  the  Jaw  de- 
clares that  such  insufficiency  shall  in  no  wise  operate  to  his 
prejudice,  provided  he  will  execute  a  good  one.  .  This  the  ap- 
pellant proposed  doing,  but  the  Court  refused  to  permit  it  and 
dismissed  the  appeal.  The  obvious  intention  of  all  the  legis- 
lation with  respect  to  proceedings  before  justices  of  the  peace, 

is  to  simplify  the  proceedings  and  dispense  with  all 
[*256]  form  and  technicality  consistent  with  a  fair  *trial  of 

causes  upon  their  merits.  This  wise  intention  would 
be  defeated  by  giving  to  the  act  any  other  construction  than 
the  one  we  have  adopted. 

The  judgment  of  the  Circuit  Court  is  reversed  and  the  cause 
remanded,  with  directions  to  that  Court  to  permit  the  appel- 
lant to  file  an  appeal  bond  and  to  hear  and  determine  the  cause 
conformably  to  this  opinion. 

Judgment  reversed. 

256 


JWE  TEEM,  1836.  256 

Foster  v.  Filley. 


ELI  FOSTEE,  plaintiff  in   error,  v.  HARVEY  FILLEY, 
defendant  in  error. 

Error  to  Madison. 

STIPULATION— DEFAULT. — Where,  after  pleading,  a  defendant  stipu- 
lated that  judgment  might  go  as  by  default,  on  his  failure  to  file  a  paper  on  a 
given  day,  and  on  such  failure,  judgment  by  default  was  entered  notwith- 
standing the  plea:  Held,  that  there  was  no  error. 

JUDGMENT  was  rendered  in  tfyis  cause  at  the  February  term, 
1836,  of  the  Madison  Circuit  Court,  the  Hon.  Sidney  Breese 
presiding. 

A.  COWLES,  for  DAVIS  &  RRTJM,  for  the  plaintiff  in  error. 
WALTER  B.  SCATES,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
Filley  commenced  an  action  of  assumpsit  upon  a  promissory 
note  in  the  Madison  Circuit  Court.  The  defendant  below 
pleaded  non  assumpsit.  Subsequently  the  defendant  agreed 
that  in  the  event  a  certain  paper  was  not  filed  on  a  particular 
day,  that  judgment  might  be  entered  as  by  default.  The  paper 
was  not  filed  and  judgment  was  entered  the  day  after  by  de- 
fault. The  error  relied  on  is,  that  there  was  a  plea  on  file  not 
disposed  of  when  the  judgment  was  rendered.  The  Court  is 
of  opinion  that  the  plea  was  waived  by  the  written  agreement 
on  file  in  the  Circuit  Court  and  that  the  judgment  was  cor- 
rectly given  by  default. 

Judgment  is  therefore  affirmed  with  costs. 

Judgment  affirmed. 

CITED:    2  Scain.  321. 

VOL.  1-17  267 


DECISIONS 


SUPREME  COURT 

OF  THE 

STATE  OF  ILLINOIS. 


DELIVERED 


DECEMBER  TERM,  1836,  AT  VANDALIA. 

THE  PEOPLE  OF.  THE  STATE  OF  ILLINOIS,  plaintiffs  in 
error,  v.  MILTON  DILL,  defendant  in  error. 

Error  to  Edgar. 

A  writ  of  error  does  not  lie  in  behalf  of  the  people,  to  reverse  the  decision 
of  a  Circuit  Court  in  a  crimuial  case. 

THE  defendant  was  indicted  in  the  Edgar  Circuit  Court  at 
the  April  term,  1835,  for  selling  liquor  without  a  license. 
The  cause  was  tried  at  the  October  term  in  the  same  year,  be- 
fore the  Hon.  Alexander  F.  Grant  and  the  defendant  acquitted. 
On  the  trial  the  State's  attorney  excepted  to  the  decision  of 
the  Court  in  relation  to  the  admission  of  evidence,  and  em- 
bodied the  same  in  a  bill  of  exceptions,  and  subsequently  sued 
out  a  writ  of  error  to  reverse  the  decision  of  the  Court  below. 

The  defendant  appeared  and  moved  the  Court  to  dismiss  the 
cause  for  want  of  jurisdiction.  The  Court  unanimously  sus- 
tained the  motion  on  the  ground  that  a  writ  of  error  will  not 
lie  in  behalf  of  the  People  in  a  criminal  case. 

O.  B.  FICKLIN,  State's  Attorney,  and  W.  B.  SCATES,  Attorney 
General,  for  the  plaintiffs  in  error. 

J.  PEARSON,  for  the  defendant  in  error. 

Writ  of  error  dismissed. 

CITED  :  12  Bradw.  349.    See  post  557. 


DECEMBEE  TEEM,  1836.  258 

Boonf.  Juliet. 


*BE:P?NINGTON  ~BooN,  appellant,  v.  JULIET,   a     [*258] 
woman  of  color,  appellee. 

Appeal  from  Jackson. 

CONSTRUCTION — PROVISO. — A  proviso  in  a  statute  is  intended  to  qualify 
what  is  affirmed  in  the  body  of  the  act,  section,  or  paragraph  preceding  it. 
The  proviso  of  §  3,  Article  6,  of  the  Constitution  of  the  State  of  Illinois,  does 
not  render  the  persons  therein  named  subject  to  servitude. 

NEGROES. — The  children  of  negroes  and  mulattoes  registered  under  the 
laws  of  the  Territories  of  Indiana  and  Illinois,  are  unquestionably  free. 

PRACTICE. — Where  •judgment  is  rendered  for  the  plaintiff  on  demurrer  to 
the  defendant's  plea,  the  plaintiff  may  have  an  inquest  to  ascertain  the 
damages,  or  he  may  waive  this  and  take  judgment  for  nominal  damages. 

THIS  cause  was  heard  in  the  Court  below  at  the  May  term, 
1835,  before  the  Hon.  Alexander  F.  Grant. 

J  SHIELDS,  for  the  appellant. 

H.  EDDY  and  D.  J.  BAKER,  for  the  appellee. 

SMITH.  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  trespass  vi  et  armis  brought  by  the 
appellee  against  the  appellant  for  an  assault  and  battery  on  her 
sons,  Peter,  Harrison,  and  Enoch,  being  her  servants,  and  re- 
straining them  of  their  liberty,  per  quod  servitium  amisit, 

The  defendant  in  the  Circuit  Court,  Boon,  pleaded  specially, 
that  one  Gaston  removed  into  this  State,  while  it  was  a  part  of 
the  Territory  of  Indiana,  and  brought  with  him  Juliet,  being 
the  owner  of  her,  then  aged  about  nine  years;  and  did  on  the 
20th  of  July,  1808,  register  her  name  and  age  with  Eobert 
Morrison,  clerk  of  the  Court  of  Common  Pleas  of  Randolph 
county,  in  said  Territory,  agreeably  to  the  law  of  the  Territory, 
entitled  "  An  act  for  the  introduction  of  Negroes  and  Mulat- 
toes into  the  said  Territory"  passed  Sept.  17,  1807  ;  that  the 
said  Gaston  on  the  13th  of  July,  1819,  transferred  the  said 
Juliet,  according  to  the  laws  of  the  Territory,  to  one  Alexan- 
der Gaston,  Jr.,  by  bill  of  sale  ;  that  on  Jie  7th  of  October, 
1819,  Alexander  Gaston,  Jr.,  transferred  her  in  like  manner  to 
one  W.  Boon,  defendant's  intestate.  That  said  Peter,  Harri- 
son and  Enoch,  are  Juliet's  children.  That  Enoch  is  twelve 
years  and  five  months  of  age,  born  since  the  adoption  of  the 
Constitution,  Peter  22,  and  Harrison  20  years  of  age;  the  two 
latter  born  beiore  the  adoption  of  the  Constitution.  The  de- 

CITED:  4  Scam.  345;  2  Giliu.7,  21;  13  111.  735. 

259 


258  VANDALIA. 


Boon  r.  Juliet. 


fondant  as  Win.  Boon's  administrator,  entered  plaintiffs  close 
and  took  said  children  and  detained  them  as  part  of  his  goods 
and  chattels,  which  are  the  supposed  trespasses,  force,  and  in- 
jury in  the  plaintiff's  declaration  mentioned.  To  this  plea  the 

plaintiff  demurred,  and  the  defendant  joined.     The 
[*259]     Circuit  Court  gave  judgment  on  the  demurrer  *for 

the  plaintiff  and  one  cent  in  damages.     The  judgment 
on  the  demurrer  is  assigned  in  this  Court  for  error. 

This  action  was  confessedly  instituted  to  ascertain  the  right 
of  the  children  named  in  the  declaration  to  freedom.  We  ap- 
prehend that  the  correctness  of  the  decision'  of  the  Circuit 
Court  is  to  be  tested  by  the  solution  of  the  proposition  whether 
the  children  of  registered  mulatto  or  negro  servants,  recog- 
nized by  the  laws  of  the  Territories  of  Indiana  and  Illinois,  or 
either  of  them,  while  such  Territories  were  in  being,  and  the 
3d  Section  of  the  6th  Article  of  the  Constitution  of  this  State 
can  be,  by  virtue  of  those  laws  and  that  section  of  the  Con- 
stitution, held  for  any  period  of  time  whatever  in  servitude. 
In  order  to  arrive  at  this  solution  it  is  necessary  to  ascertain 
what  were  the  character  and  extent  of  the  legislation  of  the 
Territories  of  Indiana  and  Illinois  on  this  subject.  It  appears 
that  while  this  portion  of  the  country  formed  a  component 
part  of  the  then  Territory  of  Indiana,  on  the  17th  of  Sep- 
tember, 1807,  the  legislature  of  the  Territory  adopted  a  law 
entitled  "  An  act  concerning  the  introduction  of  Mulattoes  and 
Negroes  into  this  Territory"  By  the  first  section  of  this  act 
it  authorized  the  "owner  of  any  negroes  or  mulattoes,  of  and 
above  the  age  of  fifteen  years,  and  owing  service  and  labor  as 
slaves  in  any  of  the  States  or  Territories  of  the  United  States, 
to  bring  the  said  negroes  or  mulattoes  into  this  Territory." 
The  second  section  of  this  act  provided  that  the  slave  might 
agree  with  the  owner,  before  the  clerk  of  the  Court  of  Com- 
mon Pleas  of  the  county  in  which  the  parties  were,  for  the 
number  of  years  which  the  slave  would  serve  his  owner,  and 
the  clerk  was  required  to  make  a  record  of  such  agreement. 

The  third  section  provided  for  the  removal  of  the  slave  in 
case  of  refusal  to  serve,  at  any  time  within  sixty  days  there- 
after. The  fifth  section  declares  that  any  person  removing 
into  this  Territory,  and  being  the  owner  or  possessor  of  any 
iK'gro  or  mulatto  as  aforesaid,  under  the  age  of  fifteen  years, 
or  if  any  person  shall  hereafter  acquire  a  property  in  any  ne- 
gro or  mulatto  under  the  age  aforesaid,  and  who  shall  bring 
them  into  this  Territory,  it  shall  and  may  be  lawful  for  such 


DECEMBER  TERM,  1836.  259 

Boon  v.  Juliet. 

two  years.  The  6tli  section  provides  that  any  person  remov- 
ing any  negro  or  mulatto  into  this  Territory,  under  the  au- 
thority of  the  preceding  sections,  it  shall  be  incumbent  on  such 
person,  within  thirty  days  thereafter,  to  register  the  name  and 
age  of  such  negro  or  mulatto  with  the  clerk  of  the  Court  of 
Common  Pleas  for  the  proper  county.  By  the  13th  section  of 
the  same  act  it  was  further  provided  that  the  children  born  in 
said  Territory  of  a  parent  of  color,  owing  service  or  labor  by 
indenture  according  to  law,  should  serve  the  master 
*or  mistress  of  such  parent,  the  males  until  the  age  of  [*260] 
thirty,  and  the  females  until  the  age  of  twenty-eight 
years.  So  far  as  relates  to  the  question  of  the  servitude  of 
the  children  of  negroes  or  mulattoes  introduced  under  the 
Territorial  laws  into  either  of  the  Territories  named,  it  is  under- 
stood that  there  was  no  further  legislation  by  the  Territory. 
The  Constitution  of  this  State  contains  in  the  3d  Section  of 
the  6th  Article,  the  following:  "Each  and  every  person  who 
has  been  bound  to  service  by  contract  or  indenture,  in  virtue  of 
the  laws  of  the  Illinois  Territory,  heretofore  existing,  atid  in 
conformity  to  the  provisions  of  the  same,  without  fraud  or 
collusion,  shall  be  held  to  a  specific  performance  of  their  con- 
tracts or  indentures,  and  such  negroes  or  mulattoes  as  shall  have 
been  registered  in  conformity  with  the  .aforesaid  laws  shall 
serve  out  the  time  appointed  by  said  laws;  Provided,  however, 
that  the  children  hereafter  born  of  such  persons,  negroes  or 
mulattoes,  shall  become  free,  the  males  at  the  age  of  twenty- 
one  years,  the  females  at  the  age  of  eighteen  years.  Each 
and  every  child  born  of  indentured  parents  shall  be  entered 
with  the  clerk  of  the  county  in  which  they  reside,  by  their 
owners,  within  six  months  after  the  birth  of  said  child." 

From  an  examination  of  the  several  provisions  of  the  laws 
of  the  Territories  referred  to,  it  will  be  seen  that  no  provision 
was  made  affecting  the  liberty  of  the  children  of  registered 
negroes  or  mulattoes,  and  it  is  manifest  that  the  Territorial 
governments  did  not  adopt  any  act  to  restrict  or  impair  their 
natural  right  of  freedom.  The  question  of  the  validity  of 
those  acts,  and  their  direct  repugnance  to  the  provisions  of  the 
Ordinance  of  1787,  has  been  fully  and  attentively  examined  in 
the  case  of  Phmle,  a  woman  of  color,  v.  Jay,  (Breese,  207)  in 
this  Court,  at  its  December  term,  1828,  and  the  effect  of  the 
constitutional  provision  in  relation  to  the  class  of  indentured 
servants  referred  to  in  that  pro  vision.  That  case  settled  the 
law  in  favor  of  the  rights  of  the  master  under  indentures  made 
in  conformity  to  the  terms  of  that  article  of  the  Constitution, 
and  although  it  might  be  supposed  to  have  left  us  little  doiibt 
in  reference  to  the  children  of  indentured  servants,  and  their 

261 


YANDALIA. 


Boon  r.  Juliet. 


liability  to  serve  out  the  time  prescribed  by  the  Territorial 
aw,  still  it  seems  to  my  mind  equally  clear,  that  the  provision 
of  the  3d  Section  of  the  6th  Article  of  the  Constitution  could 
in  110  way  alter,  abridge,  or  change  the  condition  of  the  chil- 
dren of  registered  servants.  The  Territorial  laws  had  not  in 
any  way  abridged  their  liberty,  or  rendered  them  liable  to  the 
performance  of  service  to  the  owners  of  their  parents ;  and  it 
is  in  my  judgment  absurd  and  unjust  to  deduce  such  conse- 
quences from  the  proviso  contained  in  that  section  of  the  6th 
Article  of  the  Constitution  above  quoted.  It  is  true  that  the 

words  used  in  the  proviso  "  That  the  children  here- 
[*2G1]    after  born  of  such  persons,  *negroes   or  mulattoes, 

shall  become  free,  the  males  at  the  age  of  twenty-one 
years,  and  the  females  at  the  age  of  eighteen  years,"  may  be 
considered  as  referring  to  the  registered  negroes  and  mulat- 
toes named  in  the  antecedent  sentence  of  the  paragraph  ;  but 
when  it  is  remembered  that  a  proviso  is  intended  to  qualify 
what  is  affirmed  in  the  body  of  an  act,  section,  or  paragraph 
preceding  it,  we  discover  that  it  was  intended  by  the  framers 
of  the  Constitution  as  a  limitation  on  a  supposed  pre-existing 
right  of  the  master  to  the  service  of  the  children  of  registered 
servants  for  a  greater  period  of  time,  and  designed  as  an  ex- 
ception in  favor  of  such  children,  founded,  it  is  true,  on  the 
mistaken  supposition  that,  under  the  Territorial  laws,  they  had 
been  subjected  to  a  greater  period  of  service ;  and  not  as  cre- 
ating the  liability  to  service,  and  rendering  a  class  of  persons 
evidently  free  at  their  birth  the  subjects  of  a  laborious  and  ex- 
tended period  of  servitude.  It  is  most  manifest  that  this  pro- 
viso was  framed  under  such  a  view,  and  intended  as  a  mere  lim- 
itation on  the  imagined  right  of  the  master  to  the  service  of  the 
children.  As  no  such  right  existed  at  the  formation  and  adop- 
tion of  the  Constitution,  and  as  the  proviso  must  be  considered 
as  an  act  intended  for  the  benefit  of,  and  enlarging  the  rights 
of  a  class  of  persons  supposed  to  have  been  subjected  to  a  period 
of  servitude,  when  in  truth  and  in  fact  none  such  could  be 
leg-ally  considered  to  exist,  I  am  clearly  of  opinion  that  the  chil- 
dren of  registered  negroes  and  mulattoes,  under  the  laws  of 
the  Territories  of  Indiana  and  Illinois,  are  unquestionably  free, 
and  that  the  defendant's  plea  was  insufficient  to  bar  the  plaintiff's 
action.  It  is  also  to  be  remarked  that  Peter  and  Harrison,  two  of 
the  children,  were  bora  before  the  adoption  of  the  Constitu- 
tion, and  are  necessarily  excluded  from  the  terms  of  the  8th 
Section  of  the  6th  Article ;  and  it  is  not  pretended  that  any 
the  Territory  rendered  them  in  any  manner  whatever 
liable  to  serve  the  owner  of  their  mother.  The  demurrer  to 
such  plea  was  rightly  sustained. 
202 


DECEMBER  TERM,  1836.  261 

Duncan  et  al.  v.  State  Bank  of  Illinois  et  al. 

An  objection  is  raised  to  the  judgment  for  nominal  dam- 
ages. 

The  plaintiff  might  have  had  an  inquest  to  ascertain  the 
damages,  hut  we  have  no  doubt  he  might  waive  this  and  take 
judgment  for  nominal  damages. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON. — See  Phoebe  v.  Jay,  Breese,  207;  Nance  v.  Howard, 
Hem.  183;  R.  L.  457-466;  Gale's  Stat.  501-508. 

As  to  assessment  of  damages,  see  Clemson  et  al.  v.  The  State  Bank  of  Illi- 
nois, ante  45;  Vanlandingham  v.  Fellows  et  al.,  ante233. 


*JAMES   M.   DUNCAN   and   WILLIAM     LINN,     [*262] 
plaintiffs   in  error,  v.  THE  PRESIDENT  AND 
DIRECTORS  OF    THE  STATE  BANK  OF  ILLI- 
NOIS ET  AL.,  defendants  in  error. 

Error  to  Jackson. 

DISMISSAL  OF  BiLir— PART  OF  DEFENDANTS  NOT  SERVED — ERROR. — It  is 
clearly  erroneous  to  dismiss  a  bill  filed  against  several,  a  part  only  of  whom 
having  been  served  with  process,  or  entered  their  appearance  on  motion 
of  counsel  for  those  who  are  served  with  process.  A  dismissal  of  a  bill  and 
a  dissolution  of  an  injunction  against  parties  who  are  not  in  Court,  on 
motion  of  counsel  for  those  only  who  have  entered  their  appearance,  is  erro- 
neous. 

STATE  BANK — COSTS. — The  statute  exempts  the  old  State  Bank  from  the 
payment  of  costs;  and  persons  who  have  acted  merely  ministerially  for  the 
bank,  as  agents,  are  not  liable  for  costs. 

THIS  cause  was  disposed  of  in  the  Court  below,  at  the  May 
term,  1834;,  the  Hon.  Thomas  C.  Browne  presiding. 

WALTER  B.  SCATES,  for  the  plaintiffs  in  error. 
J.  SEMPLB,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
The  plaintiffs  in  error  filed  their  bill  in  equity,  and  obtained 
an  injunction  to  restrain  the  defendants  from  collecting  two 
promissory  notes  given  by  them  to  the  State  Bank,  for  the 
sum  of  $99.92  each,  as  a  consideration  for  the  purchase  of 
400  acres  of  land  bought  by  them  of  the  defendants  under  the 
provisions  of  the  laws  of  this  State,  which  authorize  the  sale 
of  lands  purchased  of  the  debtors  of  the  bank,  by  the  presi- 

263 


VANDALIA. 

Duncan  et  al.  r.  State  Bank  of  Illinois  et  al. 

dent  and  directors  of  the  bank,  by  virtue  of  sales  made  under 
judgments  against  such  debtors.  Such  notes  thus  taken  are 
made  a  lien  on  the  real  property  of  the  makers,  and  when 
they  become  due,  execution  is  required  to  be  issued  thereon, 
for  the  collection  of  the  amount  due.  The  bill  avers  the 
issue  and  delivery  to  the  sheriff  of  Fayette  county,  of  execu- 
tions agreeably  to  the  provisions  of  the  law,  and  that  the 
sheriff  is  proceeding  to  the  collection  thereof.  The  com- 
plainants further  state  that  persons  by  the  name  of  Kerr  and 
Bell  obtained  a  judgment  against  one  Matthew  Duncan  in 
1820,  who,  it  is  alleged,  was  then  seized  in  fee  of  the 
premises  upon  which  judgment  an  execution  issued  10th 

'  of  November,  1820,  and  was  continued  down  to  1829 ;  that 
on  the  3d  of  February,  1829,  another  execution  issued,  upon 
which  the  land  was  sold  on  the  13th  of  April,  1829,  and 
was  purchased  by  one  Joseph  Charless  for  Kerr  and  Bell. 
It  further  charges  that  Matthew  Duncan  mortgaged  the 
premises  to  the  State  Bank  on  the  8th  of  January,  1822, 
which  mortgage  was  foreclosed,  and  judgment  upon  it  for 
$270,  on  the  llth  day  of  May,  1825.  Said  premises  were 
sold  under  an  execution  upon  said  judgment  on  the 
[*263]  20th  of  September,  1828,  *and  purchased  by  the  bank. 
That  afterward  by  virtue  of  the  4th  section  of  an  act 
entitled  "  An  act  to  amend  an  act  supplemental  to  an  act  es- 
tablishing the  State  Bank  of  Illinois,  January  JO,  1825"  ap- 
proved January  23,  1829,  the  cashier  of  the  Brownsville 
Branch  Bank,  proceeded  to  sell,  and  on  the  16th  of  April, 
1830,  sold  the  said  premises  to  the  plaintiffs  without  the 
notice  of  Ken-  and  Bell's  judgment  and  lien  or  Charless'  pur- 
chase, and  that  the  notes  described  in  the  bill  were  given  for 
the  purchase  aforesaid.  It  further  charges  that  Kerr  and  Bell 

\  are  asserting  their  right  under  the  purchase  made  by  Charless 
for  them.  It  appears  from  the  record,  that  the  service  of  the 
BubjKBnas  was  made  on  all  the  defendants  but  Charless  and 
Kerr  and  Bell,  who  were  non-residents,  and  as  to  whom  an  or- 
der of  publication  was  taken.  It  further  appears  that  the 
cause  was  continued  for  several  terms  for  want  of  service  upon 
all  of  the  defendants,  and  that  at  the  term  at  which  the  bill 
was  dismissed,  and  the  injunction  dissolved,  the  motion  to  dis- 
miss the  bill  and  dissolve  the  injunction,  was  made  in  the 
names  of  all  the  defendants,  without  the  previous  appearance 
of  Charless  and  Kerr  and  Bell,  who  were  non-residents,  and 
against  whom  publication  had  been  made,  to  appear  and 
answer. 

The  order  entered  on  the  motion  to  dismiss  the  bill,  is  that 
a  nonsuit  be  entered.     This  is  untechnical,  but  still  it  might 

284 


DECEMBEE  TERM,  1836.  263 

Yunt  v.  Brown. 

be  supposed  to  be  equivalent  to  a  dismissal,  because  its  effect 
is  virtually  the  same ;  but  at  the  same  time,  the  order  dis- 
solves the  injunction,  and  so  far,  is  formally  correct.  But  it 
is  clearly  erroneous  to  dismiss  a  bill  on  the  motion  of  counsel, 
for  parties  who  had  never  entered  their  appearance  in  Court, 
or  been  brought  into  Court  by  process.  The  motion  to  dis- 
miss and  dissolve  the  injunction,  appearing  to  have  been  made 
in  the  names  of  all  the  defendants  collectively,  and  for  want 
of  the  appearance  of  the  plaintiffs  who  were  called  and  did 
not  appear,  was  erroneous,  and  for  that  cause  the  judgment  is 
reversed,  and  remanded  to  the  Circuit  Court  of  Jackson  coun- 
ty for  further  proceedings.  No  costs  can  be  allowed,  because 
the  statute  exempts  the  State  Bank  from  costs,  and  the  other 
defendants,  who  have  appeared  having  acted  merely  ministe- 
rially for  the  bank  as  agents,  are  not  liable  for  costs. 

Judgment  reversed. 


*  JACOB  YUNT,  plaintiff  in  error,  v.  EPHRAIM     [*264] 
BROWN,  defendant  in  error. 

Error  to  Fulton. 

CERTIOUAKT. — A  writ  of  certiorari  to  remove  a  cause  from  a  justice  of 
the  peace  to  the  Circuit  Court  is  given  by  statute  in  such  cases  only  as  ap- 
peals are  given. 

No  appeal  or  writ  of  certiorari  can  be  taken  from  the  judgment  of  a  justice 
of  the  peace,  in  a  suit  brought  to  recover  an  assessment  upon  a  member  of 
a  class,  made  under  §  45  of  the  Militia  Law. 

JUDGMENT  was  rendered  in  this  case  by  a  justice  of  the  peace 
of  Fulton  county,  before  whom  the  suit  was  originally  insti- 
tuted, in  favor  of  the  plaintiff  in  error,  for  $8.33£  and  costs, 
from  which  Brown  obtained  a  writ  of  certiorari  to  the  Circuit 
Court. 

In  the  Circuit  Court,  at  the  May  term,  1833,  the  Hon.  Rich- 
ard M.  Young  presiding,  a  motion  was  made  to  quash  the 
writ  of  certiorari)  which  was  overruled  by  the  Court.  At  the 
June  term,  1834,  the  judgment  of  the  justice  of  the  peace  was 
reversed,  and  a  judgment  for  costs  rendered  in  favor  of 
Brown. 

T.  FORD  and  A.  W.  CAVARLY,  for  the  plaintiff  in  error. 

A.  WILLIAMS,  for  the  defendant  in  error. 
CITED:  13.  111.  634T~ 

265 


L>,  (  VANDALIA. 


Yunt ».  Brown. 


SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  brought  under  the  provisions  of  the  45th 
section  of  the  "Act  for  the  Organization  and  Government  of 
the  Militia  of  this  Mate,"  (Gale's  Stat.  484,)  in  force  2d  July, 
1838,  to  recover  the  amount  of  the  assessment  made  on  the 
defendant  in  error,  as  a  member  of  the  class  to  which  he  be- 
longed, for  the  services  of  the  persons  furnished  by  the  class 
under  a  draft,  in  pursuance  of  orders  from  the  commander  in 
chief,  while  in  actual  service.  This  section  provides  for  the 
institution  of  a  suit,  to  recover  from  each  member  of  the  class 
his  respective  proportion  of  the  compensation  due  to  the  sub- 
stitute, before  a  justice  of  the  peace ;  and  declares  there  shall 
be  no  appeal  from  the  decision  of  the  justice. 

The  defendant  Brown  sued  out  a  writ  of  certiorari  to  the 
Circuit  Court,  and  the  plaintiff,  on  its  return,  moved  to  quash 
the  same  for  having  been  improvidently  issued. 

The  Circuit  Court  refused  to  quash  the  writ;  and  this  is 
now  assigned  for  error  in  this  Court. 

The  point  made  admits  of  no  doubt  that  the  Circuit  Court 
decided  erroneously  in  refusing  to  quash  the  certiorari.     A 
writ  of  certiorari  to  remove  a  cause  from  a  justice  to  the  Cir- 
cuit Court,  is  given  by  statute  in  such  cases  only  as  appeals 
are  given,  and  then  in  such  cases  as  the  party  shall  account 
for  his  omission  or  inability  to  take  the  appeal  with- 
[*265]     in  the  time  prescribed  by  *statute,  and  on  showing 
that  injustice  has  been  done,  and  in  what  the  injustice 
consists. 

But  here  the  remedy  of  appeal  is  expressly  prohibited,  and 
consequently  no  writ  of  certiorari  could  lie.  The  policy  of 
the  prohibition  it  is  not  for  the  Court  to  inquire  into.  The 
law  is  to  be  administered  as  it  is  found,  and  not  as  it  might  be 
supposed  it  ought  to  be. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  judg- 
ment is  rendered  in  this  Court  for  the  amount  of  the  judg- 
ment rendered  before  the  justice,  with  costs  of  suit  before 
the  justice,  and  in  the  Circuit  Court,  and  this  Court,  for  the 
plaintiff  in  error. 

Judgment  reversed. 

986 


DECEMBER  TERM,  1838.  265 

Carver  v.  Crocker. 


DAVID    CARVER,   appellant,  v.  OLIVER   C.  CROCKER, 

appellee. 

Appeal  from  Cook. 

PROOF  OF  DEMAND  BY  ADVERSE  PARTY — NOTICE. — The  notice  required 
by  §  5  of  the  "Act  to  amend  an  act  concerning  Justices  of  the  Peace  and 
Constables,"  in  order  to  enable  a  party  to  prove  his  demand,  discount,  or 
gut-off  by  the  testimony  of  the  adverse  party,  or  in  case  of  his  absence  or 
refusal  to  be  sworn,  by  his  own  oath,  must  be  given  to  the  adverse  party 
personally.  A  notice  to  his  attorney  is  not  sufficient. 

THIS  cause  was  heard  in  the  Court  below,  at  the  October 
term,  1836,  before  the  Hon.  Thomas  Ford.  A  judgment  was 
rendered  for  Crocker  for  $53.31£,  for  which  Carver  appealed 
to  this  Court. 

J.  CURTISS  and  WM.  STUART,  for  the  appellant. 
G.  SPRING,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  action  was  originally  commenced  before  a  justice  of 
the  peace,  and  judgment  given  for  Crocker,  the  plaintiff, 
against  Carver,  by  default,  on  a  promissory  note.  It  was  ap- 
pealed to  the  Circuit  Court  of  Cook  county,  by  Carver,  and 
the  day  before  the  trial  in  the  Circuit  Court,  Carver  served  a 
notice  on  the  attorney  of  Crocker  "  That  the  defendant  had 
no  means  of  proving  his  set-off  to  the  demand  of  the  plaintiff, 
except  by  the  oath  of  one  of  the  parties."  On  the  trial  in  the 
Circuit  Court,  Carver  offered  to  be  sworn,  whose  evidence 
was  rejected,  on  the  ground  that  the  plaintiff  below  was  ab- 
sent and  a  non-resident  of  the  State. 

The  only  question  necessary  for  this  Court  to  decide  is, 
whether  the  notice  served  on  Crocker's  attorney  was  suffi- 
cient to  allow  Carver  to  be  sworn.  By  the  5th  section  of  the 
'•'•Act  to  amend  an  act  concerning  Justices  of  the 
Peace  and  *  Constables?  approved  February  13, 1827,  [*266] 
(R.  L.  499  ;  Gale's  Stat.  420,)  either  party  who  has  no 
witness  to  prove  his  demand,  discount,  or  set-off,  may  be  per- 
mitted to  prove  the  same  by  the  testimony  of  the  adverse? 
party,  or  in  case  of  his  absence  or  refusal  to  be  sworn,  by  his 
own  oath,  "Provided,  that  no  person  shall  be  allowed  to  prove 
his  demand,  discount  or  set-off,  unless  the  adverse  party  be 
present,  or  shall  have  been  notified  thereof,  and  for  which 
purpose  the  justice  may  continue  the  cause  for  such  time  as 

267 


VANDALIA. 


Pearce  et  al.  0.  Swan. 


may  be  necessary."  By  tlie  6th  section  of  the  act,  it  is  fur- 
ther declared  that  "Upon  trials  of  appeals  in  the  Circuit 
Court,  the  same  rules  of  evidence  shall  be  observed  as  in 
trials  before  justices  of  the  peace."  The  letter  as  well  as  the 
spirit  of  these  sections  of  the  act  are  that  the  party  litigant, 
and  not  his  attorney,  must  be  notified,  in  order  that  he  may 
elect  whether  to  be  sworn  himself,  or  suffer  the  adverse  party 
to  be  sworn.  The  attorney  could  not  give  the  evidence  con- 
templated by  the  act.  If  an  attorney  knew  the  facts  which 
the  opposite  party  desired  to  prove,  he  could  be  made  a  wit- 
ness, and  no  notice  would  be  necessary.  That  the  act  did  not 
contemplate  that  the  notice  to  the  attorney  would  be  sufficient, 
is  evident  from  the  consideration  that  the  statute  authorizes 
the  justice  to  continue  the  cause  for  such  time  as  may  be  nec- 
essary to  give  the  notice.  If  the  notice  to  an  attorney  was 
sufficient,  this  provision  to  continue  the  cause  was  idle ;  for 
the  plaintiff  is  always  in  Court,  either  in  person,  or  by  attor- 
ney, or  his  cause  would  be  discontinued.  The  defendant 
ought  to  have  obtained  a  continuance  of  the  cause,  to  enable 
him  to  serve  his  notice  on  the  plaintiff  personally.  The  Cir- 
cuit Court  decided  correctly  in  refusing  to  permit  the  defend- 
ant to  be  sworn. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


JESSE  PEARCE  and  LA  VINA  SHARP,   plaintiffs  in  error, 
v.  ALEXANDER  SWAN,  defendant  in  error. 

Error  to  Gallatin. 

EXECUTION — NOTICE  OP  CLAIM. — The  statute  does  not  require  the  claim- 
ant of  property  taken  on  execution,  to  state  on  whose  execution  the  levy 
had  been  made,  in  the  notice  he  serves.  Notice  to  the  officer  that  he  claims 
the  poods  levied  on,  intends  to  prosecute  his  claim,  and  forbids  the  sale,  is 
sufficient. 

SURPLUSAGE. — Surplusage  can  not  vitiate  a  notice. 

Ai'PEAL.-^-Objections  in  the  nature  of  a  plea  in  abatement,  must  be  made 
in  the  first  instance.  It  is  too  late  to  make  them  on  appeal.  An  appeal 
from  the  decision  of  a  jury,  upon  the  trial  of  the  right  to  property  levied  on 
execution,  must  be  taken  at  the  trial,  and  the  appeal  bond  executed  before 
the  Court  is  dissolved. 

13o\D. — An  appeal  bond  filed  the  day  after  the  trial,  is  not  sufficient. 
(*267]        IRREGULARITY  IN.  PROCESS. — When  the  process    by  which  a 
court  obtains  jurisdiction  of  a  cause  is  irregular,  if  no  objection  is 
made,  the  irregularity  is  waived. 

CITED:  16  111.  356;  17  111.  236;  81  111.  279.    See  2  Scam.  21. 

m 


DECEMBER  TEEM,  1836.  267 

Pearce  et  al.  v.  Swan. 

WAIVER. — If  an  appeal  be  irregularly  taken  to  the  Circuit  Court  from 
the  verdict  of  a  jury,  on  the  trial  of  the  right  of  property  before  a  justice, 
and  the  appellee  appear  in  the  Circuit  Court,  he  waives  all  objections  to  the 
irregularity  of  the  appeal. 

THIS  cause  was  heard  in  the  Court  below  at  the  April  term, 
1835,  before  the  Hon.  Alexander  F.  Grant. 

JESSE  J.  ROBINSON,  for  the  plaintiffs  in  error,  cited  Acts  of 
1835,  56;  R.  L.  538-9  (Gale's.  Stat.  587-8);  Breese,  3,32,  142. 

H.  EDDY,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
The  facts  of  this  case  are,  that  an  execution  was  issued  by  a 
justice  of  the  peace  to  a  constable  in  favor  of  Pearce  and 
Sharp,  the  plaintiffs  in  error,  against  the  goods  and  chattels  of 
Lewis,  Prickett  and  McMurtry,  and  was  levied  on  sundry  arti- 
cles of  personal  property.  Subsequent  to  the  levy,  Swan 
served  a  written  notice  on  the  constable  that  the  property 
levied  on  in  favor  of  John  Pearce,  Jesse  Pearce  and  Lavina 
Pearce,  executors  of  "Win.  Sharp,  deceased,  was  the  property 
of  said  Swan  and  forbade  the  sale.  Upon  the  receipt  of  this 
notice  the  justice  who  issued  the  execution  issued  a  precept 
to  summon  a  jury  to  try  the  right  of  property  between  Swan, 
the  claimant,  and  Jesse  Pearce  and  Lavina  Sharp,  the  plaint- 
iffs in  the  execution.  The  cause  was  tried  before  the  justice, 
constable  and  jury,  on  the  13th  day  of  May,  1834.  Swan  ap- 
peared before  the  Court  and  jury  as  claimant  of  the  property, 
and  Jesse  Pearce  and  Lavina  Sharp  as  plaintiffs  in  the  execu- 
tion. On  the  trial  the  jury  found  a  verdict  against  the  claim 
of  Swan,  who  thereupon  appealed  to  the  Circuit  Court  of  Gal- 
latin  county  and  executed  the  appeal  bond  on  the  14th  day  of 
May,  1834.  At  the  September  term  of  the  Gallatin  Circuit 
Court  the  appeal  was  continued.  At  the  April  term,  1835, 
the  parties  appeared  and  the  cause  was  tried  by  a  jury,  who 
returned  a  verdict  that  the  property  belonged  to  Alexander 
Swan  ;  and  thereupon  the  Circuit  Court  rendered  judgment, 
"  That  the  property  be  retained  by  the  said  Swan  and  that  he 
recover  his  costs  against  the  said  defendants." 

To  reverse  the  judgment  of  the  Circuit  Court  a  writ  of 
error  has  been  brought  to  this  Court.  The  errors  relied  on 
are:  1st.  That  the  notice  given  by  Swan  to  the  constable 
alleges  that  the  property  claimed  by  him  had  been  levied  on 
by  an  execution  in  favor  of  John  Pearce,  Jesse  Pearce  and 
Lavina  Pearce,  instead  of  an  execution  in  favor  of  Jesse  Pearce 
and  Lavina  Sharp.  2d.  Because  the  appeal  bond  was  not 

2U9 


267  VANDALIA. 


Pearce  et  al.  t>.  Swan. 


executed  on  the  day  the  trial  was  had  before  the  justice  of  the 
}>eace,  constable  and  jury.  3d.  Because  it  is  uncer- 
[*26S]  tain  against  whom  the  judgment  is  given.  *These 
errors  will  be  noticed  in  their  order.  The  Court  are 
of  opinion  that  the  "  Act  prescribing  the  mode  of  trying  the 
rigid  of  property"  (R.  L.  537;  Gale's  Stat.  586),  passed  29th 
July,  1827,  does  not  require  the  claimant,  in  the  notice  he 
serves  on  the  constable,  to  state  on  whose  execution  the  levy 
had  been  made.  It  is  sufficient  to  notify  the  constable  that  he 
claims  the  goods  levied  on,  forbids  the  sale  and  intends  to 
prosecute  his  claim.  Anything  more  was  surplusage  and 
could  not  vitiate  the  notice,  particularly  as  no  objection  was 
made  to  the  notice  before  the  justice  and  constable. 

Had  Pearce  and  Sharp  objected  that  the  notice  was  insuf- 
ficient to  compel  them  to  litigate  the  right  to  levy  on  the 
goods,  the  only  effect  of  such  an  objection  would  have  been  a 
dismissal  of  the  proceedings  and  then  the  claimant  could  have 
given  a  new  notice.  This  objection  is  in  the  nature  of  a  plea 
in  abatement  and  according  to  the  case  of  Conley  v.  Good 
(Breese,  96),  ought  to  have  been  made  before  the  justice  and 
constable.  No  objection  having  been  raised  either  before  the 
justice  and  constable  or  in  the  Circuit  Court,  it  is  now  too  late 
an  1  consequently  can  not  be  assigned  for  error. 

The  second  assignment  of  error  presents  some  difficulty.  By 
an  examination  of  the  a])]  eal  bond  contained  in  the  record  it 
appears  that  the  trial  before  the  justice,  constable  and  jury, 
was  had  on  the  13th  day  of  April,  and  the  appeal  bond  was 
executed  on  the  14th;  but  it  is  not  clearly  stated  whether  the 
verdict  of  the  jury  was  delivered  on  the  13th  or  14th.  If  it 
is  conceded,  and  it  is  probably  a  fair  inference,  that  the  verdict 
was  rendered  on  the  loth,  the  two  questions  are  presented  for 
consideration:  1st.  Does  the  statute  require  an  appeal  to 
betaken  on  the  day  of  delivering  the  verdict?  And  if  it 
does,  then  does-  not  the  appearance  of  Pearce  and  Sharp,  in  the 
Circuit  Court,  without  objection,  waive  the  irregularity? 

The  appeal  to  the  Circuit  Court  is  given  by  the  5th  section 
of  the  act,  and  although  no  time  is  mentioned  within  which  the 
appeal  may  be  taken,  yet  no  doubt  can  exist  that  it  should  be 
taken  before  the  Court  is  dissolved  and  the  parties  have  dis- 
persed for  the  following  reasons :  An  appeal  is  a  continuation 
of  the  former  suit  and  suspends  all  proceedings  in  the  Court 
below.  Unless  it  is  token  during  the  sitting  of  the  Court,  the 
opposite  party  will  have  no  means  of  knowing  of  its  existence,  as 
the  statute  makes  no  provision  to  give  notice  of  the  pendency 
of  the  apjxjal.  The  object  of  taking  the  appeal  is  defeated  if 
the  appeal  IB  not  taken  immediately;  for  as  soon  as  the  verdict 

270 


DECEMBEK  TEEM,  1836.  268 

Pearce  et  ai.  v.  Swan. 

of  the  jury  is  delivered,  if  the  decision  is  in  favor  of 
the  right  of  the  execution  *creditor,  the  officer  may  [*269] 
proceed  to  sell  the  goods;  or,  if  the  verdict  is  for  the 
claimant,  the  property  is  delivered  over  to  him.  In  either 
event  the  prosecution  of  an  appeal  would  be  entirely  useless. 
And  lastly,  when  the  justice,  constable  and  jury  have  sepa- 
rated and  the  parties  gone  from  the  place  of  trial,  the  Court 
is  functus  affido  and  can  do  no  act  for  the  continuing  the 
suit  in  existence.  The  functions  of  the  Court  having  ceased 
to  exist,  the  appeal  was  irregularly  allowed  on  the  day  subse- 
quent to  the  trial. 

Having  an-ived  at  the  result  that  the  appeal  was  irregularly 
taken,  it  becomes  a  question  whether  the  plaintiffs  in  error, by 
appearing  in  the  Circuit  Court,  without  objection,  have  not 
waived  the  irregularity  of  the  appeal,  and  are  to  be  considered 
as  appearing  by  consent.  The  statute  clearly  gives  the  Circuit 
Court  power  to  re-try  the  right  of  property  in  the  same  mao- 
ner  as  it  may  be  done  before  the  justice  and  constable.  Tak- 
ing the  appeal,  executing  the  bond,  and  delivering  the  papers 
to  the  clerk  of  the  Circuit  Court,  are  the  means  provided  by  law, 
by  which  the  cause  is  transferred  from  the  justice  and  consta- 
ble to  the  Circuit  Court.  These  means  are  in  the  nature  of 
process  to  remove  the  cause  from  the  inferior  to  the  superior 
court.  When  the  process  by  which  a  court  obtains  jurisdic- 
tion of  a  cause  is  irregular,  if  no  objection  is  made  the  irreg- 
ularity is  waived.  The  irregularity  is  not  like  the  case  of  a 
defect  of  jurisdiction  over  the  subject-matter,  for  tl  e  statute 
gives  jurisdiction  to  the  justice  and  constable  in  the  first  in- 
stance, and  to  the  Circuit  Court  by  appeal.  Nor  is  it  like  the 
caee  where  jurisdiction  is  given  to  an  inferior  court,  which 
must  proceed  in  the  manner  pointed  out  by  the  statute,  or  its 
proceedings  will  be  coram  nonjudice  and  void,  because,  as  we 
have  seen,  the  justice  and  constable  had  rightfully  exercised 
jurisdiction  over  the  came,  and  the  Circuit  Court,  being  a  court 
of  general  jurisdiction,  may  obtain  jurisdiction  over  the  cause 
either  in  the  mode  pointed  out  by  the  statute,  by  consent  of 
the  parties,  or  by  the  presumed  consent  of  the  parties  where 
irregular  process  is  not  objected  to.  (Eaxton  et  al.  v.  Altum, 
ante  250.)  "We  are,  therefore,  of  opinion  that  the  plaint- 
iffs in  error,  by  appearing  in  the  Circuit  Court,  have  waived 
all  objections  to  the  irregularity  of  the  appeal. 

The  last  error  relied  on,  as  to  the  form  of  the  judgment  for 
costs,  is  entirely  without  foundation.  The  judgment  is  ren- 
dered perfectly  clear  when  taken  in  connection  with  the  ver- 
dict. The  verdict  finds  the  property  to  belong  to  Swan;  and 
the  judgment  is  that  Swan  retain  the  property,  and  that  he 

271 


YANDAL1A. 


Marston  t>.  Wilcox. 


recover  his  costs  against  the  said  defendants.  The  said  defend- 
ants can  mean  only  Pearce  and  Sharp,  as  the  costs  are  express- 
ly given  to  Swan. 

The  judgment,  therefore,  of  the  Circuit  Court  is  affirmed 
with  costs. 

Judgment  affirmed. 


[*270]     *DAVID  MARSTON,  appellant,  v,  JOHN  R.  WIL- 
COX, appellee. 

Appeal  from  Hancock. 

RECEIPT  AS  EVIDENCE. — Where  W.  held  a  note  dated  Oct.  21,  1823,  for 
$200,  made  by  M.  and  payable  to  W.  thirty  days  after  date ;  and  another  note 
for  $453.10,  dated  Aug.  9, 1815,  signed  also  by  M.,  and  M.  died  March  9,  1831 ; 
and  sifter  M.'s  death,  a  receipt  was  found  among  his  papers,  given  by  W.  to 
M.  in  full  of  all  demands,  dated  Feb.  3,  1831.  and  another  receipt  in  which 
W.  promised  to  collect  a  note  for  ^50,  and  to  pay  over  the  proceeds  to  the  in- 
testate, after  deducting  25  per  cent,  for  collecting,  dated  December  25,  1830; 
Held,  that  the  receipts  were  prima  facie  evidence  of  the  payment  of  the 
notes. 

A  receipt  in  full  of  all  demands  is  prima  facie  evidence  of  the  payment  of 
all  notes  and  claims  existing  at  the  time  the  receipt  is  given. 

THIS  cause  was  decided  in  the  Circuit  Court  at  the  April 
term,  1834,  before  the  Hon.  Richard  M.  Young. 

A.  WILLIAMS,  for  the  appellant,  cited  3  Black.  Com.  371  ; 
Gilbert's  Ev.  204,  309;  Espinasse's  K  P.  3,  4;  Jacob's  Diet, 
title  Acquittance;  Comyn's  Dig.  title  Release;  E.  1 ;  2  Stark. 
Ev.  32 ;  3  Stark.  Ev.  1085,  1271. 

T.  FOED  and  J.  "W".  WHITNEY,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
From  the  record  in  this  cause,  it  appears  that  letters  of  ad- 
ministration were  granted  to  Wilcox,  as  a  creditor  of  the  es- 
tate of  one  Merrill  Marston,  on  the  7th  of  June,  1831.  That 
on  the  26th  of  September,  1831,  on  the  application  of  the 
plaintiff,  those  letters  were  revoked  by  the  judge  of  pro- 
ba'e,  on  the  ground  that  Wilcox  was  not  a  creditor  of  the  in- 
testate, and  had  obtained  the  same  by  fraudulent  representa- 
tion of  the  indebtedness  of  the  intestate  to  him,  and  new  letters 

See  15  111.  343. 

272 


DECEMBER  TERM,  1836.  270 

Marston  v.  Wilcox. 

were  granted  to  the  plaintiff  as  next  of  kin  to  the  intestate. 
To  this  decision  of  the  Probate  Court,  Wilcox  excepted,  and 
appealed  to  the  Circuit  Court.  The  Circuit  Court  reversed 
the  decision  of  the  Court  of  Probate,  on  the  ground  of  the 
want  of  authority  in  the  Court  of  Probate  to  review  or  reverse 
its  first  decision,  on  the  alleged  ground  of  fraud.  This  decis- 
ion of  the  Circuit  Court  was  appealed  from  to  this  Court,  at 
a  former  term.  This  Court  reversed  the  decision  of  the  Cir- 
cuit Court,  and  remanded  the  cause,  with  direction  to  proceed 
in  the  cause  under  the  evidence.  (Ante,  60.)  The  Circuit 
Court,  on  a  re-hearing  of  the  cause,  reversed  the  judgment  of 
the  Court  of  Probate,  on  the  testimony  given  in  the  cause, 
which  is  all  embodied  in  the  bill  of  exceptions.  From  this 
decision  the  plaintiff  has  appealed  to  this  Court. 

The  only  questions,  then,  to  be  now  decided,  rest  entirely  on 
the  character  of  that  evidence,  and  the  weight  which 
should  be  *attached  to  it,  and  the  legal  force  and  pre-     [*271] 
sumption  which  accompany,  and  may  be  fairly  and 
reasonably  deduced  from  it. 

The  defendant,  Wilcox,  to  establish  his  being  a  creditor  of 
the  intestate,  produced  a  note  for  two  hundred  dollars,  pay- 
able to  Wilcox  thirty  days  after  date,  signed  by  the  intestate, 
and  dated  at  Fort  Edwards,  Illinois,  October  21,  1823 ;  and 
another  note  for  $453.10,  payable  to  one  Beavin  Johnson, 
dated  Salem,  August  9,  1815,  and  signed  also  by  intestate. 
The  intestate,  it  was  proved,  died  9th  of  March,  1831.  The 
signature  of  the  intestate  is  considered  to  have  been  proved, 
although  a  considerable  number  of  the  witnesses  called  to 
prove-  the  handwriting,  speak  doubtingly  and  equivocally  of 
the  signature.  On  the  part  of  the  plaintiff,  a  receipt  from 
Wilcox  to  the  intestate  in  full  of  all  demands,  dated  3d  Feb- 
ruary, 1831,  and  another  receipt  in  which  Wilcox  promised 
to  collect  a  note  for  $50,  and  to  pay  over  the  proceeds  to  the 
intestate,  after  deducting  25  per  cent,  for  collecting,  dated 
December  25,  1830,  were  produced  and  read  in  evidence. 

A  witness  on  the  part  of  the  plaintiff,  likewise  proved  that 
in  1830,  the  intestate  gave  an  order  on  Wilcox  for  a  small  sum 
of  money,  which  the  witness  presented  to  Wilcox,  who  either 
said  he  would  pay  it,  or  call  and  see  the  intestate  about  it. 
This  witness,  after  the  testimony  was  closed,  was  recalled  on 
the  next  day,  to  establish  some  confession  or  statement  that 
the  intestate  had  said,  "He  had  raised  money  for  the  said 
Wilcox,  or  had  to  raise  some ; "  but  the  evidence  is  altogether 
loose,  vague,  and  too  uncertain  to  be  relied  on,  and  seems  to 
have  been  elicited  from  the  witness,  after  his  examination  in 

VOL.  1-18  273 


271  YANDALIA. 


Marston  r.  Wilcox. 


chief  on  the  day  before,  by  Wilcox  in  a  conversation  intended 
to  refresh  the  witness'  memory,  and  is  not  altogether  free 
from  suspicions  as  to  its  character  and  credibility,  from  the 
manner  in  which  it  was  brought  out.  This  is  the  whole  testi- 
mony in  the  case  deemed  to  be  material  and  applicable  to  the 
matter  in  controversy;  and  the  point  to  be  determined  seems 
to  bo  the  simple  question  of  the  effect  of  the  receipt  in  full, 
and  whether  it  is  not  jn*ima  facie  evidence  of  an  extinguish- 
ment of  the  two  notes  of  hand  held  by  Wilcox.  When  the 
great  lapse  of  time  is  considered  between  the  making  of  the 
notes  and  the  time  of  setting  up  the  demand  under  them,  the 
period  in  the  one  case  being  over  sixteen  years,  and  in  the 
other  eight  years,  there  can,  I  should  suppose,  be  no  doubt  left 
on  the  mind,  that  these  were  stale  demands.  The  party  hold- 
ing them  during  all  that  period  of  time,  without  having  made 
a  demand  of  payment,  and  no  acknowledgment  of  the  intes- 
tate at  any  time  that  he  owed  the  several  amounts,  appearing, 
should,  under  every  just  and  legal  presumption,  be  considered 
as  being  concluded  by  his  receipt  executed  in  1831 ;  and  such 

receipt  must  be  taken  to  be — in  the  absence  of  evi- 
[*272]  dence  to  show  that  the  *notes  were  excepted  from  its 

general  and  comprehensive  terms — what  the  phrase- 
ology imports,  a  receipt  in  full  of  all  claims  whatsoever.  If 
it  was  not  so  intended  by  the  party  signing  it,  then  it  rested 
with  him  to  show,  by  evidence,  that  such  exception  was  made, 
and  that  might  have  been  shown  by  the  declaration  of  the 
parties  at  the  time  of  making  such  receipt,  by  acknowledgment 
of  the  intestate  afterward,  or  by  an  admission  of  the  intestate 
that  he  owed  the  notes,  or  any  other  act  or  declaration  equiv- 
alent thereto.  On  the  contrary,  the  force  of  the  receipt  and 
the  strong  presumption  from  the  great  lapse  of  time,  that  the 
notishad  been  liquidated  and  paid,  are  greatly  fortified  by  the 
receipt  given  in  1830,  for  the  note  received  for  collection,  and 
the  testimony  relative  to  the  order  given  by  the  intestate  in 
1830,  on  Wilcox,  for  money,  and  his  reply  thereto.  It  is  in- 
conceivable to  suppose  that  if  Wilcox  held  these  notes  at  the 
time,  and  they  were  in  reality  due  and  unpaid,  he  should  not 
have  asserted  the  indebtedness  of  the  intestate  to  him  on  the 
presentation  of  the  order,  and  should  not  also  have  required 
the  application  of  the  proceeds  of  the  note  given  for  collection, 
toward  the  payment  of  his  demands  arising  under  the  two  notes. 
1-  roni  the  receipt,  and  the  concurring  acts  and  circumstances 


and  judgment  is  to  be  entered  in  this  Court  for  the  appellant, 

274 


DECEMBER  TERM,  1836.  272 

Leidig  v.  Rawson. 

with  the  costs  in  this  Court,  and  in  the  Circuit  and  Probate 
Courts. 

Judgment  reversed. 


GEOEGE  LEIDIG,  appellant,  v.  DANIEL  RAWSON, 
appellee. 

Appeal  from  Montgomery. 

ACTION  FOR  MALICIOUS  PROSECUTION. — In  actions  for  malicious  prosecu- 
tions, it  is  a  rule  of  law  that  there  must  be  both  malice  and  a  want  of  prob- 
able cause,  to  justify  a  recovery.* 

EVIDENCE. — In  an  action  for  malicious  prosecution,  the  defendant  may 
give  in  evidence  any  facts  which  show  that  he  had  probable  cause  for  prose- 
cuting, and  that  he  acted  in  good  faith,  on  the  ground  of  suspicion. 

MALICE  AND  WANT  OP  PROBABLE  CAUSE. — The  gist  of  the  action  for 
malicious  prosecution,  is,  that  the  prosecutor  acted  maliciously,  and  without 
probable  cause.  If  there  is  no  malice,  or  if  there  is  probable  cause,  the 
action  will  not  lie. 

VARIANCE. — The  rule  applicable  to  variances,  is,  that  whenever  an  instru- 
ment of  writing  or  a  record  is  not  the  foundation  of  the  action,  a  variance 
is  not  material  unless  the  discrepancy  is  so  great  as  to  amount  to  a  strong 
probability  that  it  can  not  be  the  instrument  or  record  described. 

PERJURY — EVIDENCE. — In  an  action  for  the  malicious  prosecution  of  the 
plaintiff  on  a  charge  of  perjury  in  making  a  complaint  before  a  justice  of  the 
peace,  that  the  defendant  had  committed  a  larceny,  the  defendant  asked  the 
following  question  of   a  witness,  who  was  his  counsel  before  the 
justice:  "Did  the  defendant  understand,  on  *the  trial  before  the    [*27o] 
justice,  that  he  was    answering  to  a  prosecution  for  stealing  ?  " 
Held  that  the  question  was  improper. 

THIS  cause  was  tried  at  the  October  term,  1835,  of  the  Mont- 
gomery Circuit  Court,  before  the  Hon.  Sidney  Breese.  The 
jury  found  a  verdict  for  the  plaintiff  in  the  Court  below,  the 
anpellee,  for  $325.  Judgment  was  rendered  upon  this  verdict. 
The  defendant  appealed  to  this  Court. 

Variance.  CITED:  1  Scam.  334;  13  111.  670;  80  111.  519;  108  111.  644. 

Malicious  prosecution.     CITED:  18  111.  115;  58  111.  370;  70  111.  410. 

" Malicious  prosecution. 

It  is  elementary  that  to  sustain  an  action  for  malicious  prosecution,  the 
burden  is  on  the  plaintiff  to  show  malice  and  want  of  probable  cause. 

Heyne  v.  Blair,  62  N.  Y.  19;  Diets  v.  Langfitt.  63  Pa.  St.  234;  Medcalfe 
v.  Brooklyn  Life  Ins.  Co.,  45  Md.  198;  Burris  v.  North,  64  Mo.  426;  Vinal  v. 
Core,  18  W.  Va.  1. 

It  must  also  appear  that  the  original  action  or  prosecution  had  been 
terminated  in  the  plaintiff's  favor  before  the  commencement  of  his  action. 
O'Brien  t>.  Barry,  106  Mass.  800;  Brown  r.  Randall,  36  Conn.  56;  Feltt  v. 
Davis,  49  Vt.  151;  Cardival  r.  Smith,  109  Mass.  158;  Wheeler  v.  Nesbitt, 
24  How.  544;  Blalock  v.  Randall,  76  111.  224. 

The  right  of  action  accrues  "  whenever  the  particular  prosecution  be  dis- 
posed of  in  such  a  manner  that  it  can  not  be  revived,  and  the  prosecutor,  if 
he  proceeds  further,  will  be  put  to  a  new  one."  Casebeer  v.  Drahoble,  13 
Neb.  465. 

275 


o73  VAKDALIA. 

Leidig  t>.  Bawson. 


A.  COWLH»  and  J.  SEMPLE,  for  the  appellant,  contended : 

1st.  The  gist  of  the  action  is  malice. 

2d.  It  is  competent  for  the  defendant  to  show  an  honest  in- 
tention, in  relation  to  the  act  charged  as  malicious.  2  Stark. 
Ev.  and  cases  cited,  921,  922. 

3d.  The  question  of  malice  is  alone  for  the  jury.  2  Stark. 
Ev.  923-4,  911,  922,  916. 

H  EDDY,  J.  S.  GREATHOUSE,  and  S.  T.  SAWYER,  for  the  ap- 
peJlee,  cited  2  Stark.  Ev.  912;  2  Pirtle's  Dig.  170-178. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

As  to  ichat  constitutes  termination  of  the  *w#  or  prosecution,  see,  further* 
Graves*.  Dawson.  133  Mass.  419;  Hower  v.  Lewton,  18  Fla.  328;  Hatch  v. 
Cohen,  84  N.  C.  602. 

Proof  of  malice  does  not  excuse  proof  of  want  of  probable  canse,  nor  can 
want  of  probable  cause  be  inferred  as  matter  of  fact  or  law  from  proof  of 
malice.  Leyenberger  t>.  Paul.  12  Bradw.  636;  Chapman  v.  Cawrey.  50  111. 
512;  Mitchinson  f.  Cross,  58  111.  366;  McFarland  v.  Washbura,  14  Bradw. 
369;  Besson  r.  Southard,  10  N.  Y.  236. 

It  has  been  said  that  malice  may  be  inferred 'from  want  of  probable  cause. 
This  is  not,  however,  an  inference  of  law.  It  is  more  correct  to  say  that  the 
jurv  may  find  the  fact  of  the  existence  of  malice  from  the  same  evidence 
which  shows  want  of  probable  cause.  Malice  is  a  fact  the  existence  of  which 
must  be  found  by  the  jury.  Harpham  v.  Whitney,  77  111.  32;  Animer- 
uian  t.  Crosby,  26"lnd.  451;  Levi  v.  Brennan,  39Cal.  485;  Straus  r.  Young, 
36  Md.  246:  Block  v.  Meyers,  53  La.  Ann.  776;  Greer  v.  Whitfieid,  4  Lea. 
85;  Wag<taff  v.  Schippel,  27  Kan.  450;  Hirshi  v.  Mettelman,  7  Bradw. 
112;  Comisky  v.  Breers,  7  Bradw.  369.  Compare  Sharpe  v .  Johnston,  76 
Mo.  660;  Carson  v,  Edgeworth,  43  Mich.  241 ;  Kingsbury  v.  Garden,  45  N. 
Y.  Sup.  Ct.  224. 

As  to  advice  of  counsel,  see  an  article  by  John  D.  Lawson,  in  12  Central 
L.  J.  487.  See  also,  21  Am.  Law  Reg.  N.  S.  582,  12  Am.  Dec.  265. 

It  is  generally  held  that  advice  of  counsel,  after  a  full  statement  of  the 
facts  known  to  the  prosecutor,  or  which  might  have  been  known  by  reason- 
able diligence,  is,  it  acted  upon  in  good  faith,  a  good  defense  to  this  action. 
It  is  sometimes  held,  however,  that  such  advice  is  not  a  complete  defense, 
but  only  evidence  to  the  jury  of  the  absence  of  malice  or  of  the  presence  of 
probable  cause.  See  Hopkins  T.  McGillicuddy,  69  Me.  273;  Loewenthal  v. 
Streng,  90  111.  74;  Brown  r.  Smith,  83  111.  291;  Calef  v.  Thomas,  81  111.  478; 
Skidmore  r.  Bricker,  77  111.  164;  Hogg  v.  Pinckney,  16  S.  C.  887;  Forbes  p. 
Hiigman,  75  Va.  168;  Decoux  r.  Lieux,  33  La.  Ann.  392;  Logan  v.  Maytag, 
57  la.  107;  Sharpe  v.  Johnston,  76  Mo.  660;  White  v.  Carr,  71  Me.  555. 

This  defense  need  not  be  specially  pleaded.  Sparling  v.  Conway,  75  Mo. 
510:  Sparling  v .  Conway,  6  Mo.  App.  283. 

An  to  what  constitutes  probable  cause,  see  Planters'  Ins.  Co.  «.  Williams, 
TO  Miss.  916;  Plassan  v.  La.  Lottery  Co.,  34  La.  Ann.  246;  Bitting  t.  Ten 
Evck,  82  Ind.  421;  Keep  r.  Griggs,  12  Bradw.  511;  Casey  v.  Levateon ,  30 
Minn.  516;  Hogg-r.  Pinckney,  16  S.  C.  387;  Bernar  v.  Dunlap,  94  Pa.  St. 
3-29:  Forbes  r.  Hagman,  75  Va,  168;  Burrelh,-.  Deer,  7  Bradw.  181;  McManus 
r.  Wallis,  52  Tex.  534;  Stacey  v.  Emery,  97  U.  S.  642;  Bourne  v.  Stout,  62 
111.  261;  Chapman  r.  Cayrey,  50  111.  212;  Calef  v.  Thomas,  81  111.  478. 

As  to  what  constitutes  malice,  see  Johnson  r.  Ebberts,  6  Sawyer  C.  C.  538; 
Forbes  r.  Hagman,  75  Va.  168 ;  Vinal  v.  Core.  18  W.  Va.  1 ;  Decoux  v.  Lieux. 
3  La.  Ann.  392;  Gabel  v.  Weisensee,  49  Tex.  131;    Splayne  9.  Byrne,  9 
Bradw.  392. 

276 


DECEMBER  TERM,  1836.  •  273 

Leidig  v.  Rawson. 

This  was  an  action  of  trespass  on  the  case,  commenced  by 
Rawson  against  Leidig,  in  the  Montgomery  Circuit  Court,  for 
maliciously  indicting  Rawson  for  perjury.  The  defendant  be- 
low pleaded  not  guilty.  On  the  trial  of  the  cause,  Leidig  read 
in  evidence  to  the  jury,  without  objection,  an  affidavit  made 
before  Josiah  Wright,  Esq.,  a  justice  of  the  peace  for  Mont- 
gomery county,  by  Daniel  Rawson,  in  the  words  following,  to 
wit : 

"March  3d  day,  in  1834,  The  People  of  the  State  of  Illinois 
against  John  Steerman  and  George  Leidig  and  Henry  Blood- 
ner.  Whereas  Daniel  Rawson,  of  Bond  county  and  State  of 
Illinois,  personally  appeared  before  me,  a  justice  of  the  peace 
in  and  for  the  county  of  Montgomery  and  State  of  Illinois, 
and  made  oath  that  the  above  named  John  Steerman  and 
George  Leidig  and  Henry  Bloodner  did  forcibly  take  away  two 
yoke  of  oxen,  and  other  articles,  which  I  believe  I  had  an  in- 
terest in:" 

Which  being  read  to  the  jury,  Leidig's  counsel  offered  to 
give  evidence  to  prove  that  Rawson,  in  making  said  affidavit, 
swore  falsely;  but  the  Court  decided  that  such  evidence  should 
not  be  given  to  the  jury.  To  which  opinion  the  defendant  ex- 
cepted.  The  following  exceptions  were  also  signed  on  the  trial, 
to  wit ;  u  Thatdefendantcailed  J.  A.  Wakefield,  Esq.,  who  was 
counsel  for  George  Leidig,  before  Josiah  Wright,  Esq.,  on  3d 
of  March,  1834,  in  the  prosecution  of  the  People  against  Lei- 
dig and  others,  to  prove  that  Leidig  understood  that  case  to  be 
for  larceny  in  taking  Rawson's  oxen,  and  proposed  this  ques- 
tion: f  Did  the  defendant,  Leidig,  understand  on  the  trial  be- 
fore Justice  Wright,  that  he  was  answering  to  a  pros- 
ecution for  stealing  the  oxen  ? '  *which  was  objected  [*274] 
to  by  the  plaintiff,  and  the  objection  sustained  by  the 
Court." 

The  refusal  of  the  Court  to  permit  the  defendant  to  give 
evidence  to  prove  that  Rawson  in  making  the  affidavit  swore 
falsely,  and  the  decision  of  the  Court  in  refusing  to  receive  the 
testimony  of  Wakefield,  are  assigned  for  error. 

The  questions  arising  out  of  these  bills  of  exceptions  will 
be  examined  in  their  order.  The  reason  why  the  Circuit 
Court  refused  to  permit  the  defendant  to  prove  the  affidavit 
of  the  plaintiff  to  be  false,  is  not  stated  in  the  bill  of  excep- 
tions. It  is,  however,  fairly  to  be  presumed,  that  it  was  because 
there  was  a  variance  between  the  affidavit  read  on  the  trial, 
and  the  oath  alleged  in  the  indictment  to  have  been  taken  by 
Rawson  before  the  justice;  the  making  of  which  oath  was 
the  foundation  of  the  indictment  for  perjury.  If  the  variance 
was  the  cause  of  rejecting  the  testimony  to  prove  its  falsity 

277 


074  YANDAL1A. 


Leidig  ».  Rawson. 


and  no  other  reason  appears  probable — the  Court  below 

erred.  The  affidavit  being  read  without  objection  was  an  im- 
plied admission  on  the  part  of  the  plaintiff  that  it  was  the  af- 
fidavit or  oath  that  was  before  the  grand  jury,  as  the  basis  of 
the  indictment  against  him.  For  what  purpose  did  Leidig  of- 
fer this  affidavit  to  the  jury,  as  part  of  his  defense,  unless  to 
show  the  grounds  lie  had  for  prosecuting  Eawsonfor  perjury? 
The  Court  can  perceive  no  other  object,  and  the  plaintiff  not 
objecting  to  it,  is  precluded  from  denying  that  it  was  relevant 
to  the  point  in  issue. 

In  actions  for  malicious  prosecutions,  it  is  a  rule  of  law  that 
there  must  be  both  malice  and  a  want  of  probable  cause  to 
justify  a  recovery.  This  rule  of  the  law  is  founded  upon  prin- 
ciples of  public  policy.  (2  Stark.  Ev.  911,  and  authorities 
there  cited.) 

The  defendant  may  give  in  evidence  any  facts  which  show 
that  he  had  probable  cause  for  prosecuting,  and  that  he  acted  in 
good  faith,  upon  the  ground  of  suspicion.  (2  Stark  Ev.  916.) 

But  conceding  that  there  is  a  variance  between  the  affidavit 
read  and  the  oath  mentioned  in  the  declaration,  and  that  the 
plaintiff  had  objected  to  the  reading  of  the  affidavit,  ought 
the  objection  to  have  prevailed  ?  The  rule  of  law  applicable 
to  variances,  is,  that  whenever  an  instrument  of  writing  or  a 
record  is  not  the  foundation  of  the  action,  a  variance  is  not 
material,  unless  the  discrepancy  is  so  great  as  to  amount  to  a 
strong  probability  that  it  can  not  be  the  instrument  or  record 
described.  Test  this  affidavit  by  this  rule.  It  is  to  be  observed 
that  it  is  not  stated  in  the  indictment  whether  the  oath  admin- 
istered by  the  justice  to  Eawson  was  or  was  not  in  writing. 
The  oath  mentioned  in  the  indictment,  and  the  affidavit,  were 
both  made  before  the  same  justice,  and  on  the  same  day.  The 
prosecutions  in  both  were  carried  on  in  behalf  of 
[*275]  the  People.  The  indictment  *alleges  that  Rawson 
charged  Leidig  with  feloniously  taking  two  yoke  of 
oxen,  two  plows,  and  two  log  chains,  the  property  of  Eawson. 
The  affidavit  states  that  Leidig  and  others  did  forcibly  take 
away  two  yoke  of  oxen  and  other  articles  which  Eawson  be- 
lieved he  had  an  interest  in.  From  this  comparison  of  the 
two  statements,  no  doubt  can  exist  that  they  both  refer  to  the 
same  transaction.  For  what  object  could  Eawson  make  his 
complaint  to  the  justice,  on  oath,  but  to  charge  Leidig  with 
stealing  his  oxen  and  other  articles?  The  justice  could  not  try 
an  action  of  trespass  for  taking  the  oxen,  as  their  value,  with 
the  other  articles,  was  much  beyond  a  justice's  jurisdiction. 
Had  Eawson  intended  to  institute  a  civil  action  against  Leidig, 
no  oath  would  have  been  necessary.  The  complaint  that  was 

28 


DECEMBER  TERM,  1836.  275 

Leidig  v.  Rawson. 

exhibited  in  the  affidavit  before  the  justice  of  the  peace,  was 
substantially,  though  not  technically,  a  charge  that  Leidig  had 
feloniously  sto'en  the  oxen  and  other  articles,  and  so,  doubtless, 
the  justice  and  Rawson  considered  the  matter  when  the  oath 
was  administered  and  the  warrant  issued.  The  language  used 
in  the  indictment  is  that  of  the  grand  jury  and  the  prosecuting 
attorney,  and  for  which  Leidig,  as  the  prosecutor,  is  not  re- 
sponsible, if  He  stated  nothing  but  facts,  however  great  the 
variance  may  be  between  the  language  used  in  the  indictment 
and  the  facts  sworn  to  by  the  prosecutor.  To  illustrate  this 
position :  Suppose  A  goes  before  the  grand  jury,  and  swears 
that  B  has  stolen  his  goods.  The  grand  jury,  however,  find  a 
bill  for  robbery.  On  the  trial  B  is  acquitted  because  the  charge 
is  not  proved  as  laid.  B  then  brings  his  action  against  A. 
Would  it  not  be  competent  for  A  to  show  that  he  only  com- 
plained against  B  for  larceny,  before  the  grand  jury,  and 
that  B  was  guilty  of  the  larceny  charged  ?  Certainly  he  could ; 
for  the  gist  of  the  action  for  malicious  prosecution  is  that  the 
prosecutor  acted  maliciously,  and  without  probable  cause.  If 
there  is  no  malice,  or  if  there  is  probable  cause,  the  action  will 
not  lie.  The  mistake  of  the  grand  jury,  in  finding  a  wrong 
bill,  can  not  make  a  party  liable  who  has  acted  in  good  faith. 

Again,  suppose  Leidig,  in  entering  his  complaint  to  the 
grand  jury,  had  exhibited  the  affidavit  above  referred  to,  and 
complained  that  Rawson,  in  making  that  affidavit,  had  sworn 
falsely ;  yet  the  grand  jury  had  found  the  bill  of  indictment 
described  in  the  declaration,  and  on  the  trial  of  the  indictment 
Rawson  was  acquitted  because  the  Court  decided,  upon  the 
production  of  the  affidavit,  that  no  such  false  oath  had  been 
taken  as  the  one  set  forth  in  the  indictment ;  would  it  not  be 
competent  for  Leidig,  on  the  trial  of  an  action  for  malicious 
prosecution,  to  show  that  there  was  falsehood  in  the  affidavit  ? 
It  clearly  would.  The  Court  are  therefore  of  opinion,  that, 
circumstanced  as  this  case  was,  the  Circuit  Court 
erred  in  refusing  to  permit  Leidig  to  prove  *the  falsity  [*276] 
of  the  affidavit  read  on  the  trial.  We  are  also  of 
opinion  that  the  Circuit  Court  decided  correctly  in  refusing  to 
permit  Wakefield  to  answer  the  question  asked  him.  Had  the 
question  been  whether  lie,  as  counsel  of  Leidig,  had  informed 
him  that  he  was  prosecuted  for  larceny,  the  cmestion  would 
have  been  proper  as  part  of  the  res  yesta.  It  might  have 
tended  to  show  the  absence  of  malice.  (2  Starkie,  922.) 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  remanded,  witli  directions  to  the  Circuit  Court  of 
Montgomery  county  to  award  a  venire  de  now. 

Judgment  reversed. 

279 


276  VANDALIA. 


Jones  et  al  v.  Bramblet  et  al. 


JOHN  JONES,  THOMAS  JONES  and  WILLIAM  JONES, 
appellants,  v.  JOHN  DOE  ex  dem.  BETSEY  BRAMBLET 
and  NANCY  BRAMBLET,  appellees. 

Appeal  from  Gallatin. 

CONSTRUCTION  OP  WILL — EVIDENCE — CONDITION — FEE — LIFE  ESTATE. — 
Where  A  devised  land  to  C,  to  take  effect  on  the  death  of  the  wife  of  A, 
on  condition  that  C  would  become  bound  to  and  live  with  A's  wife  until  C 
should  be  married,  evidence  of  the  declarations  of  the  wife  of  A  that  she 
did  not  desire  C  to  be  bound  to  her,  is  relevant  and  proper.  If  A's  wife 
voluntarily  dispense  with  the  performance  of  the  condition,  the  estate  will 
take  effect. 

The  performance  of  a  condition,  where  it  has  been  voluntarily  dispensed 
with,  is  not  essential  or  necessary  to  the  perfection  of  an  estate. 

The  declarations  and  acts  of  a  third  person  are  not  legal  evidence. 

If  there  exist  any  obscurity  in  the  language  of  a  will,  owing  to  its  peculiar 
phraseology,  and  the  seeming  incongruities  of  its  several  parts,  and  the 
Court  can  ascertain  the  real  intention  of  the  testator  and  give  effect  to  the 
several  parts  of  the  will  without  rendering  any  component  part  inoperative, 
it  is  bound  so  to  do. 

If  there  be  two  devises  in  a  will  of  the  same  property  to  two  different 
persons,  and  the  first  create  an  estate  of  inheritance,  the  second  devise,  with- 
out words  of  perpetuity,  will  not  destroy  the  first,  and  will  create  a  life 
estate  only,  with  reversion  in  the  heirs  of  the  first  devisee. 

If  a  testator  annex  a  condition  to  the  creation  of  an  estate,  the  perform- 
ance of  which  afterward  becomes  impossible,  the  devisee  will  take  the  estate 
discharged  of  the  condition. 

Words  of  inheritance  or  perpetuity  are  essential  to  create  a  fee. 

A  devise  without  words  of  perpetuity  or  inheritance  creates  a  life  estate 
only. 

THIS  was  an  action  of  ejectment  brought  by  plaintiff's  lessors, 

to  recover  possession  of  the  S.  E.  qr.  of  Sec.  14,  T.  8,  S.  R.  6 

East.     In  the  year  1830,  John  Brown,  under  and  by  virtue  of 

'  whose  will  the  lessors  of  the  plaintiff  claim  title,  died  seized  of 

two  tracts  of  land  in  Gallatin  county,  which  he  bequeathed 

with  his  personal  property,  "  to  his  well  beloved  wife, 
[*277]  Sarah,  for  to  *have  the  benefit  and  profit  of  the 

farms  and  improvements  thereon,  during  her  natural 
life,  and  at  her  death  to  descend  to  her  heirs,  except  the  S.  E. 
qr.  Sec.  14,  T.  8,  S.  R.  6  East,"  (the  same  land  this  action  was 
brought  to  recover,)  "which  is  given  equally  to  two  infant 
children,"  then  living  in  his  family,  "named  and  called  Betsey 
Bramblet  and  Nancy  Bramblet,  (the  lessors  of  the  plaintiff  in 
the  Court  below,)  daughters  of  Benjamin  and  Polly  Bramblet. 
This  land  is  given  to  the  aforesaid  Nancy  and  Betsey  if  they 
should  continue  to  live  with  my  wife,  and  are  bound  to  her 

CITED:  62  111.  98.    See  27  111.  518;  37  111.  480. 
m 


DECEMBER  TEEM,  1836.  277 

Jones  et  al.  v.  Bramblet  et  al. 

and  continue  to  live  with  her  until  married."  Mrs.  Sarah 
Brown,  the  wife  of  the  testator,  died  in  1832,  and  Thomas, 
William  and  John  Jones,  defendants  below,  took  possession 
of  the  lands  as  heirs  at  law. 

The  evidence  on  the  part  of  the  plaintiff,  material  to  the 
issue  on  the  trial  of  this  cause,  was  in  substance  as  follows : 
George  Wright  testified,  that  the  testator,  John  Brown,  died 
in  March,  1830,  and  that  in  the  fall  of  the  same  year,  his  wife, 
Mrs.  Sarah  Brown,  removed  to  Kentucky,  leaving  the  children 
(the  Bramblets)  in  the  care  of  their  grandmother,  Mrs.  Nancy 
Brown.  That  Mrs.  Sarah  Brown  had  never  requested  or  de- 
sired that  the  children  should  be  bound  to  her,  and  she  was 
unable  to  take  charge  of  them  and  raise  them  herself ;  but 
had  nothing  against  the  children  having  the  land. 

Mrs.  Nancy  Brown  testified  that  in  the  summer  following 
testator's  death  witness  took  the  children  at  the  desire  of 
Mrs.  Sarah  Brown,  who  did  not  want  them  bound  to  her,  and 
was  unable  to  take  care  of  them  if  they  had  been.  The  de 
fendants  then  offered  to  prove  by  a  witness,  that  she,  as  grand 
mother  of  the  Bramblets,  had  often  said  they  never  should 
be  bound  to  Mrs  Sarah  Brown ;  which  the  Court  refused. 
Whereupon  the  defendants,  by  their  counsel,  objected  to  the 
introduction  of  all  the  foregoing  testimony,  and  excepted  to 
the  opinion  of  the  Court  in  admitting  parol  evidence,  except 
so  far  as  it  went  to  show  a  compliance  with  that  part  of  the 
will  which  made  it  necessary  for  the  lessors  of  the  plaintiff  to 
continue  with  Mrs.  Sarah  Brown,  and  that  she,  since  the  mak- 
ing of  the  will  had  died.  Judgment  was  entered  for  the 
plaintiff  on  the  verdict  of  the  jury. 

JESSE  J.  ROBINSON,  for  the  appellants,  relied  on  the  follow- 
ing points  and  authorities. 

1st.  If  the  lessors  of  the  plaintiff  had  been  bound  under  the 
will,  to  Sarah  Brown,  it  should  have  appeared  by  record  evi- 
dence alone.  H.  Dig.  68. 

2d.  If  parol  evidence,  though  erroneous,  be  admitted  for  one 
party,  it  should  not  be  rejected  as  to  the  other.  Con.  Dig.  170. 

3d.  Where  a  fee  simple  is  conveyed  to  one,  there  is  no 
estate  remaining :  4  Dane,  301,  §  3 ;  4  Dane,  614,  §  6. 
The  defendants  *are  entitled  under  the  will  to  the     [*278] 
bequeathed  land  as  heirs  of  Sarah  Brown,  the  testator's 
wife  ;  for  it  is  given  and  bequeathed  to  them  alone  absolutely 
and  unconditionally,  viz.,  "  during  her  natural  life,  and  at  her 
death  to  descend  to  her  heirs."     Here  is  clearly  a  life  estate 
given  to  Sarah  Brown,  and  the  fee  to  her  heirs.     This  may 


be  done  and  is  legal. 


281 


YANDALIA. 


Jones  et  al.  r.  Bmmblct  et  al. 


4th.  But  the  lessors  of  the  plaintiff  say  the  land  sued  for 
is  excepted  out  of  the  gift  and  bequest  to  Sarah  Brown  and 
her  heirs,  and  given  to  them  in  fee  simple.  This  can  not  be 
the  fact,  for  "  the  devise  to  the  lessors  is  void,  as  inconsistent 
with  the  absolute,  unqualified  interest  of  defendants."  The 
fee  can  not  be  given  to  one  and  a  life  estate  afterward  carved 
out  of  it  and  given  to  another.  The  exception  in  the  will  is 
repugnant  to  the  estate  previously  demised  and  vested,  and 
therefore  void.  So  that  the  former  disposition  of  the  land 
would  remain  as  if  the  after  excepting  clause  had  never  been 
made.  4  Dane's  Abr.  92-4,  §§  1,  3,  4,  5,  9,  10,  11 ;  I  Shep. 
Touch.  79.  The  exception  is  also  void  because  of  the  uncer- 
tainty in  the  description  of  the  land  or  estate  excepted,  there 
being  no  words  of  reference,  such  as  "  aforesaid,"  or  of  specific 
identification  as  are  used  in  the  gift  or  bequest  to  Sarah 
Brown  and  her  heirs.  Ib.,  and  also  4  Dane's  Abr.  505  §  1. 

5th.  Conceding  the  legality  of  the  exception,  the  devise  in 
the  testator's  will  creates  only  a  life  estate  in  the  plaintiff's 
lessors,  for  the  bequest  hath  no  words  of  inheritance  or  perpe- 
tuity in  it ;  and  such  words  are  indispensable  to  convey  a  fee. 
2  Blac.  Com.  108-15  ;  4  Dane's  Abr.  305  §  12,  307  §  22,  609 
§  6,  615  §  11. 

6th.  The  estate,  before  it  could  vest  in  'plaintiff's  lessors, 
was  made  to  depend  unon  three  separate  and  distinct  conditions 
precedent,  none  of  which  were  proven  to  have  been  complied 
with  or  performed.  Whatever  estate  was  given  by  the 
devise  was  conditionally  given,  to  take  effect  or  not  upon  the 
performance  or  non-performance  of  the  condition.  2  Blac. 
Com.  154-7 ;  4  Dane's  Abr.  162  §  1,  164  §  9,  782  §  16,  783 
§  17.  If  the  condition  be  only  subsequent,  and  the  estate  be 
given  to  another,  it  must  be  strictly  performed.  4  Bac.  Abr. 
420.  Conditions  that  destroy  an  estate  must  be  performed 
strictly.  4  Dane's  Abr.  164,  §  9.  The  Court  can  not  make  a 
will,  or  interpret  by  an  arbitrary  construction,  nor  take  into 
their  consideration  any  subsequent  alteration  of  events.  4 
Dane's  Abr.  503  §  6.  The  lessors  of  the  plaintiff,  although 
minors,  are  bound  by  conditions  in  wills  as  other  persons.  1 
Bac.  Abr.  401;  4  Bac.  Abr.  413;  4  Dane's  Abr.  162  §  3. 
Conditions  when  attached  or  annexed  to  real  estate,  are  not 
in  terrorem.  But  their  conditions  precedent  or  subsequent 
tike  place.  4  Bac.  Abr.  411,12,  13,14;  4  Dane's  Abr. 
302-6. 

[*279]         *W.  J.  GATEWOOD  and  H.  EDDY,  for  the  appellees, 
cited  2  Eq.  Abr.  title  Conditions,  213  ;  Free,  in  Chan. 
562;  Atk.  363. 


DECEMBEE  TEEiM,  1836.  279 

Jones  et  al.  t\  Bramblet  et  al. 

TJiere  being  no  limitation  over  in  the  devise,  such  a  condi- 
tion as  that  contained  in  the  will,  is  only  in  terrorem;  Secus 
if  there  had  been  a  limitation  over,  for  in  such  a  case  a  court 
of  equity  can  not  interpose.  2  Frem.  Rep.  10,  119. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  ejectment  to  recover  the  possession  of 
the  S.  E.  qr.  of  Section  14,  in  T.  8,  S.  E.  6  East.  "  The  lessors 
of  the  plaintiff  claimed  the  land  under  the  will  of  John 
Brown,  who  devised  the  lands,  named  in  his  said  will,  as  f  ol- 
lows,viz.:  "  First,  I  give  and  bequeath  to  my  well  beloved 
wife,  Sarah,  the  following  quarter  section  of  land,  viz.:  The 
South  East  quarter  of  Section  Eleven,  in  Township  8,  South 
of  Eange  6  East.  Also  the  South  East  quarter  of  Section 
Fourteen,  in  Township  8,  South  of  Eange  4,  East,  in  the  lands 
sold  at  Shawneetown,  for  her  to  have  the  benefit  and  profit  of 
the  farms  and  improvements  that  are  on  both  quarter  sections, 
during  her  natural  life ;  and  at  her  death  to  descend  to  her 
heirs,  except  the  South  East  quarter  of  Section  Fourteen,  which 
is  given  equally  to  two  infant  children  that  are  now  living 
with  us,  named  and  called  Nancy  Brarnblet  and  Betsey  Bram- 
blet, daughters  of  Benjamin  and  Polly  Bramblet.  This  land  is 
given  to  the  aforesaid  JSrancy  and  Betsey,  if  they  should  con- 
tinue to  live  with  my  wife,  and  are  bound  to  her  and  continue 
to  live  with  her  until  married.  And  further,  should  both  or 
either  of  them  marry  with  my  wife's  consent,  they  are  au- 
thorized to  settle  and  improve  on  the  aforesaid  South  East 
quarter  of  Section  Fourteen ;  but  my  wife  is  to  have  the  ben- 
efit of  the  present  improvements  during  her  natural  life." 
The  defendant  claimed  title  under  the  recited  clause  in  the 
will,  and  this  portion  of  the  will  is  all  that  the  respective  par- 
ties assert  their  claims  under.  The  jury  found  a  verdict  for 
the  lessors  of  the  plaintiff. 

The  defendants  in  the  Court  below  assign  for  error  the  fol- 
lowing causes : 

1.  That  the  Circuit  Court  admitted  improper  parol  testi- 
mony to  go  to  the  jury,  on  the  part  of  the  plaintiff's  lessors. 

2.  That  it  rejected  proper  parol  evidence  offered  on  the 
part  of  the  defendants. 

3.  That  the  verdict  of  the  jury  was  contrary  to  law  and  the 
evidence. 

The  points  made  will  be  considered  in  the  order  they  are 
stated.  It  appears  from  the  evidence  embodied  in  the  bill  of 
exceptions,  that  the  will  of  the  testator  was  executed  on  the 
1st  of  March,  1830;  and  that  he  died  on  the  12th  day  of  the 

283 


279  YANDALIA. 


Jones  et  al.  v.  Bramblet  et  al. 


same  month  ;  that  his  wife,  Sarah  Brown,  was  feeble 
[*2SO]  and  infirm,  and  *died  in  May,  1832.  That  the  les- 
sors of  the  plaintiif  offered  in  evidence  the  declara- 
tion of  Sarah  Brown,  as  to  her  inability  to  receive  and  take 
charge  of  them,  and  did  not  desire  to  have  them;  and  of  her 
removal  to  Kentucky  without  them,  where  she  died.  That 
the  lessors  were  at  the  time  inftnts  of  tender  age,  not  more  than 
eight  or  nine  years  old.  This  is  the  substance  of  the  testimony 
objected  to  nnder  the  first  point  as  inadmissible.  There  can 
be  no  doubt  that  the  testimony  was  proper  to  show  that  that 
poition  of  the  will  which  made  the  estate,  created  in  the  les- 
sors of  the  plaintiff,  depend  on  the  condition  of  their  living 
with  Sarah  Brown,  and  being  bound  to  her,  had  been  dispensed 
with  by  Sarah  Brown  ;  and  therefore  the  performance  of  those 
acts  as  conditions  precedent  to  their  taking  the  estate,  was  by 
no  means  necessary  to  the  perfection  of  such  estate. 

On  the  second  point  made,  the  offer  to  give  in  evidence  the 
declaration  and  acts  of  Nancy  Brown,  that  the  children  should 
not  live  with,  or  be  bound  to,  Sarah  Brown,  was  wholly  irrel- 
evant, being  the  declaration  and  acts  of  a  third  person,  and 
was  properly  rejected. 

The  last  point  made  necessarily  involves  the  construction  of 
the  will  of  the  testator,  and  upon  that  construction  must  de- 
fend the  tenableness  of  the  objections,  that  the  verdict  and  re- 
covery of  the  lessors  of  the  plaintiff  is  not  justified  by  the 
evidence.  It  is  admitted  that  the  language  of  the  will  is  by 
no  means  free  from  obscurity,  owing  to  its  peculiar  phraseol- 
ogy, and  the  seeming  incongruities  of  its  several  parts ;  still  it 
is  a  settled  judicial  maxim,  that  when  the  Court  can  fairly  as- 
icertain  the  real  intention  of  the  testator,  and  give  effect  to 
the  several  parts  of  the  will,  without  rendering  any  compo- 
nent part  inoperative,  it  is  bound  so  to  do.  It  is  believed 
that  in  the  present  case  that  maxim  can  be  justly  applied.  If 
there  shoula  be  an  adherence  to  the  literal  interpretation  of 
the  first  devise  in  the  will,  it  is  evident  that  the  testator  creat- 
ed an  estate  for  life  in  both  the  quarter  sections  described,  in 
favor  of  his  wife,  with  a  remainder  over  to  her  heirs ;  but 
after  having  done  so,  he  then  excepts  section  14,  being  one  of 
the  two  named,  from  the  operation  of  this  devise,  and  devises  it 
to  the  lessors  of  the  plaintiff,  upon  the  condition,  "  that  they 
should  continue  to  live  with  his  wife,  and  be  bound  be  her, 
and  live  with  her  until  they  are  married"  Now  this  second 
device  of  the  same  land  evidently  operated  on  and  destroyed 
the  first,  as  it  relates  to  section  14,  and  it  gave  this  section  in 
presenti  uron  a  condition  which  might,  or  might  not,  be  per- 
formed. The  performance  would  first  depend  on  the  con. 

2M 


DECEMBER  TEEM,  1836.  280 

Peek  v.  Boggess. 

sent  of  his  wife,  for  unless  she  consented  to  the  lessors  resid- 
,  ing  withher,  and  being  bound  to  her,  it  is  evident  that  they 
could  not  perform  either  part  of  the  condition.  Doubtless 
the  testator  was  desirous  that  they,  being  then  of  ten- 
der age,  should  continue  under  the  *care  and  pro-  [*281] 
tection  of  his  wife;  and  to  effectuate  that  object 
more  certainly,  he  designated  the  mode  he  supposed  most 
likely  to  accomplish  it ;  but  it  is  seen  that  both  the  living 
and  the  indenturing  of  the  lessors  was  prevented  by  the 
voluntary  act  of  the  wife,  for  whose  benefit,  it  may  be  sup- 
posed, the  condition  was  also  in  some  measure  originally 
created ;  and  the  more  so,  as  when  they  became  of  more 
mature  age  the  testator  must  have  supposed  that  they  would 
be  of  great  service  to  her.  The  accomplishment  of  this  ob- 
ject is,  however,  eventually  defeated  by  the  death  of  Sarah 
Brown,  the  wife  of  the  testator,  and  thereupon  the  condition 
annexed  to  the  creation  of  the  estate,  in  the  lessors  of  the 
plaintiff,  became  an  impossible  condition  to  be  performed,  and 
consequently  the  lessors  take  the  estate  given,  without  the 
condition  thus  rendered  nugatory.  That  estate,  however,  is 
but  a  life  estate,  to  take  effect  on  the  death  of  testator's 
wife,  there  being  no  words  of  inheritance  or  perpetuity  con- 
tained in  the  devise,  and  such  words  being  indispensable  to 
make  a  fee.  The  verdict  then  was  neither  against  law  nor 
evidence.  The  judgment  of  the  Circuit  Court  is  to  be  affirmed 
with  costs. 

Judgment  affirmed. 


CHARLES  PECK,  appellant,  v.  WILLIAM  BOGGESS, 
appellee. 

Appeal  from  Jo  Dariess. 

DEMURRER— WAIVEB.— Upon  the  overruling  of  a  demurrer  to  a  plea,  if 
the  plaintiff  reply,  he  thereby  waives  the  demurrer,  and  can  not  afterward 
assign  for  error  that  it  was  overruled. 

INSTRUCTION. — In  an  action  brought  by  P.,  as  assignee  of  M.,  to  recover 
the  amount  of  a  promissory  note  made  by  B.,  the  Court  gave  the  following 
instructions  to  the  jury : 

"  That  if  the  jury  believe  from  the  evidence  that  B.  and  M.  made  a  lump- 
ing trade;  that  if  B.  agreed  to  give  8615  for  M.'s  interest*  whatever  it 
might  be,  (meaning  the  interest  in  the  partnership  concern,  in  whirh  they 
were  both  interested  and  to  which  the  making  of  the  note  related)  and  was 
not  deceived  or  imposed  on  by  any  false  and  fraudulent  representations  or 

CITED:  3  Scam.  49. 

285 


2S1  YAXDALIA. 


Peck  v.  Boggess. 


concealments,  then  made  by  M.,  then  the  note  is  founded  on  a  good  considera- 
tion, und  is  binding  on  B."     Held,  that  the  instruction  was  correct. 

KUUOR. — Unless  a  party  excopts  to  instructions  in  the  Court  below,  he 
can  not  assign  them  for  error  in  the  Supreme  Court. 

Tins  \vas  an  action  commenced  in  the  Jo  Daviess  Circuit 
Court,  by  Peck  against  Boggess,  upon  a  promissory  note  for 
$ti  15.19,  given  by  the  defendant,  Boggess,  to  one  John  D. 
Mtillikin,  and  by  said  Mullikin  assigned  to  the  plaintiff,  on  the 
15th  day  of  May,  1834.  The  note  was  dated  Aug.  24,  1833, 
and  payable  thirty  days  after  date.  The  defendant  filed  three 
special  pleas,  to  all  of  which  the  plaintiff  demurred. 
[*2S2]  The  demurrer  was  *sustained  to  the  first  and  second, 
and  overruled  to  the  third  plea.  Issue  was  then  taken 
on  the  third  plea,  which  alleged  "that  said  promissory  note 
was  made  and  executed  without  any  good  or  valuable  consid- 
eration whatever,"  and  leave  taken  by  the  defendant  to  file 
two  amended  pleas.  The  amended  pleas  were  demurred  to  by 
the  plaintiff.  The  Court  sustained  the  demurrer  to  the  first 
amended  plea,  and  overruled  it  as  to  the  second,  which  was  as 
follows: 

And  for  further  plea  in  this  behalf,  the  said  defendant  comes, 
etc.,  when,  etc.,  and  says  the  said  plaintiff,  his  aforesaid  action 
thereof  against  him  ought  not  to  have  and  maintain,  because 
lie  says  that  the  said  promissory  note,  in  said  plaintiff's  decla- 
ration mentioned,  was  executed  and  given  by  this  defendant 
upon  the  settlement  of  a  joint  concern  theretofore  existing 
between  tne  said  John  D.  Mullikin  and  the  said  defendant,  in 
consideration  that  the  said  Mullikin  should  deliver  over  to  the 
said  defendant  all  moneys  then  on  hand  belonging  to  said  joint 
concern,  and  for  no  other  consideration  whatever.  This  de- 
fendant avers  that  the  said  Mullikin  did  not  deliver  over  to 
said  defendant  all  moneys  on  hand  belonging  to  the  said  joint 
concern,  but  only  the  sum  of  thirty-four"  dollars,  whereas,  in 
truth  and  in  fact,  there  was  then  on'  hand  belonging  to  said 
joint  concern  the  sum  of  two  thousand  dollars;  and  the  said 
defendant  says  that  the  consideration  of  said  note  has  failed  in 
this,  that  the  said  Mu'likin  did  not  deliver  over  to  this  defend- 
ant the  whole  of  the  said  two  thousand  dollars,  but  only  the 
sum  of  thirty-four  dollars  as  aforesaid,  and  this  he  is  ready  to 
verify,  etc.,  wherefore,  etc. 

B.  MILLS,  Att'y  for  deft, 

To  this  plea  the  plaintiff  filed  a  general  replication,  and  the 
cause  was  submitted  to  a  jury,  who  found  a  verdict  for  the  de- 
fendant.    The  cause  was  tried  before  the  Hon.  Stephen  T.  Lo- 
gan, at  the  August  term,  1835.     The  plaintiff  in  the  Court 
•at 


DECEMBER  TERM,  1836.  282 

Peck  v.  Boggess. 

be^w  appealed  to  this  Court.    On  the  trial  in  the  Court  below, 
the  following  bill  of  exceptions  was  taken: 

On  the  trial  of  this  cause  on  the  issues  joined,  the  witnesses 
having  been  heard  by  the  jury  on  the  part  of  the  defendant. 
none  having  been  produced  on  the  part  of  the  plaintiff,  the 
plaintiff,  by  his  counsel,  moved  the  Court  to  instruct  the  jury 
as  follows,  viz.:  That  the  dissolution  of  partnership  be- 
tween Boggess  and  Mullikin,  the  assignor,  and  the  transfer  to 
Boggess  of  the  debts  and  accounts  due  the  firm,  and  the  stock 
and  property  of  the  firm,  was  a  good  and  valuable  considera- 
tion. That  the  defendant  on  the  special  plea  last  traversed, 
and  upon  which  issue  was  joined,  must  have  proved  to  the 
jury  that  Mullikin  had  on  hand  two  thousand  dollars,  as  therein 
alleged,  of  partnership  money  at  the  time  of  its  disso- 
lution and  of  executing  the  note  sued  on,  and  that  *the  [*283] 
payng  over  of  that  sum  was  the  sole  consideration  of 
said  note.  But  the  Court,  as  to  the  last  instruction,  said  there 
could  be  no  doubt  such  proof  must  be  made,  but  that  the 
testimony  proved  that  the  payment  of  the  two  thousand 
dollars  was  not  the  sole  consideration  of  the  note,  and  that  the 
jury  ought  not  to  take  that  plea  into  consideration,but  should 
bo  confined  in  their  verdict  to  the  other  issue.  And  the  Court 
refused  to  give  the  instructions  as  asked  for,  but  gave  instruc- 
tions to  the  jury  as  follows,  viz. :  The  Court  instruct  the  jury, 
that  if  they  believe,  from  the  evidence,  that  on  the  dissolution 
of  the  partnership  between  Boggess  and  Mullikin  they  made 
an  estimate  of  the  property  of  the  partnership,  and  the  debts 
due  from  and  to  the  partnership,  and  that  on  such  estimate 
Mullikin's  interest  was  found  to  be  worth  $615,  and  there  upon 
it  was  agreed  that  Boggess  should  take  the  partnership  prop- 
erty and  debts  and  pay  the  debts  due  from  the  partnership, 
and  that  Boggess  executed  his  note  in  consideration  thereof  to 
Mullikin  for  $615 ;  and  if  they  further  believe  that  there  was 
a  mistake  in  the  estimate,  -and  that  either  in  consequence  of 
the  debts  due  from  the  partnership  being  greater  than  they 
were  estimated  to  be,  or  the  debts  due  to  the  partnership  be- 
ing less  than  the  estimate,  the  interest  of  Mullikin  was  worth 
nothing,  then  the  note  is  without  consideration  and  not  bind- 
ing on  Boggess,  m^ess  they  believe  that  Boggess  agreed  to 
take  his  interest  whatever  it  should  be. 

That  if  they  believe  from  the  evidence  that  at  the  dissolu- 
tion of  the  partnership  between  Boggess  and  Mullikin,  Bog- 
gess agreed  to  give  Mullikin  $615  for  his  interest  in  the  firm, 
and  executed  his  note  therefor,  and  that  Boggess  was  induced 
to  do  so  by  the  representations  of  Mullikin,  from  which  it  ap- 
peared that  Mullikin's  interest  was  worth  that  sum,  and  that 

287 


283  YANDALIA. 


Peck  r.  Boggess. 


such  representations  were  false  and  fraudulent,  and  that  Bog- 
gess was  imposed  on  thereby,  when  in  fact  the  interest  of 
Mnllikin  was  worth  nothing  in  consequence  of  the  amount  of 
debts  due  from  the  tirm  which  were  known  to  Mullikin  and 
not  to  Boggess,  and  concealed  by  Mullikin  from  Boggess,  then 
the  note  is  without  consideration,  and  not  binding  on  Boggess. 

That  if  they  believe  from  the  evidence  that  the  interest  of 
Mullikin  in  the  firm  was  worth  $615,  then  the  consideration  of 
the  note  is  good,  and  Boggess  is  bound  thereby. 

That  if  they  believe  from  the  evidence  that  Boggess  and 
Mullikin  made  a  lumping  trade;  that  Boggess  agreed  to  give 
$615  for  Mullikin's  interest  whatever  it  might  be,  and  was 
not  deceived  or  imposed  on  by  any  false  and  fraudulent  rep- 
resentations or  concealments  then  made  by  Mullikin,  then 
the  note  is  founded  on  good  consideration,  and  is  binding  on 
Boggess. 

To  which  said  last  instructions,  so  given  by  the  Court,  the 

plaintiff,  by  his  counsel,  excepts,  and  tenders  this  his 

[*2S4]     bill  of  *exceptions,  which  he  prays  may  be  signed, 

sealed,  and  made  a  part  of  the  record  in  this  cause, 

which  is  accordingly  done. 

STEPHEN  T.  LOGAN.  [L.  s.] 

A.  COWLES,  for  the  appellant,  contended : 

1.  The  jury  should  have  been  directed  that  unless  the  proof 
was  correspondent  with  the  special  issue,  they  ought  to  find 
for  the  plaintiff. 

2.  The  facts  as  alleged  in  the  second  plea  are  stated  to  have 
been  the  consideration  of  the  note.     It  was  therefore  neces- 
sary to  prove  the  consideration  as  alleged.     2  Stark.  Ev.  349, 
350,  352,  353,  354,  358. 

3.  When  the  consideration  of  a  contract  is  alleged,  consist- 
ing either  of  distinct  matters  forming  one  entire  consideration, 
or  of  one  matter  forming  an  entire  consideration,  it  must  be 
proved   as  laid.     1    Chitty,  96,  262  top,  263  side ;  2  Johns. 
Digest,  title  Pleadings,  194,  118,  209,— case  275  ;  10   Johns. 
140 ;  Breese,  268. 

4.  Our  statute,  title  Practice,  allows  pleading  either  an  en- 
tire or  total  failure  of  the  cons;deration.     Under  these  issues 
different  proof  is  requisite.     Proof  of  a  partial  failure  will 
not  support  a  total  failure.     So  in  stating  the  consideration,  it 
is  one  entire  thing. 

II.  EDDY  and  JAMES  GRANT,  for  the  appellee : 
The  rule  of  law  is  that  a  party  has  not  a  right  to  demand 
the  opinion  of  the  Court  upon  abstract  questions  of  law.     1 
Bibb,  369  ;  2  Pirt.  Dig.  218,  §  62 ;  Ib.   219,  §  74.     The  evi- 

288 


DECEMBER  TERM,  1836.  284 

Peck  v.  Boggess. 

dence  should  appear  to  warrant  any  instructions  based  upon  it, 
to  enable  this  Court  to  judge  whether  they  were  applicable  or 
not.  See  the  last  reference,  and  2  Pirt.  221,  §  80,  where  it 
was  held  the  Supreme  Court  will  not  regard  exceptions  unless 
the  evidence  be  stated  at  length,  and  that  "  in  every  kind  of 
action,  the  evidence  upon  which  the  instructions  or  opinion  of 
the  Court  is  given  or  denied,  must  appear,  referring  to  1 
Monroe,  196. 

The  filing  of  the  replication  to  the  second  amended  plea 
was  a  waiver  of  the  demurrer.     2  Pirt.  Dig.  211,  §  10. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  on  a  promissory  note  assigned  to  the 
plaintiff.  The  defendant  pleaded  several  special  pleas  of  want 
of  and  failure  of  consideration,  and  fraudulent  representations 
of  the  assignor,  at  the  time  of  making  the  note,  and  by  which 
fraudulent  representations  the  note  was  obtained.  To  the  first 
and  second  pleas  the  plaintiff  demurred,  and  his  demurrers 
were  sustained.  On  the  third  he  took  issue  by  replication. 
Leave  was  given  to  the  defendant  to  file  amended  pleas,  and 
he  accordingly  filed  two  special  pleas,  to  both  of  which  the 
plaintiff  demurred.  The  demurrer  to  the  first  amended  plea 
was  sustained,  and  to  that  of  the  second  overruled  ;  and  there- 
upon the  plaintiff  replied  to  the  second  amended  plea,  and 
o  ok  issue  thereon. 

*On  the  trial  several  instructions  were  asked  by  the  [*285] 
plaintiff's  counsel  which  are  not  important  to  no- 
tice, no  exception  being  taken  to  any  of  them  but  one,  which 
will  be  noticed ;  and  because  these  instructions  were  entirely 
correct,  and  directly  applicable  to  the  cause.  The  plaintiff 
has  made  three  several  points,  and  relied  on  them  as  the 
grounds  of  error  in  this  cause. 

1.  That  the  demurrer  to  the  defendant's  amended  plea  was 
incorrectly  overruled. 

2.  That  the  Court  erred  in  the  last  part  of  the  instructions 
given  to  the  jury  contained  in  the  following  words,  viz. :  "  That 
if  the  jury  believe  from  the  evidence  that  Boggess  and  Mulli- 
kin  made  a  lumping  trade ;  that  if  Boggess  agreed  to  give 
$615  for  Mullikin's  interest,  whatever  it  might  be,  (meaning 
the  interest  in  the  partnership  concern  in  which  they  were 
both  interested,  and  to  which  the  making  of  the  note  related,) 
and  was  not  deceived  or  imposed  on  by  any  false  and  fraudu- 
lent representations  or  concealments  thon  made  by  Mulli  kin, 
then  the  note  is  founded  on  a  good  consideration  and  is  binding 
on  Boggess." 

3.  That  the  Court  erred  in  the  general  instructions  given. 

VOL.  1—19  2-9 


YANDALIA. 


Curtis  v.  The  People. 


The  answer  to  the  first  objection  on  the  demurrer  is,  that 
the  plaintiff  waived  any  possible  ground  he  might  have  had  by 
his  replication;  he  should  have  stood  by  his  demurrer  and  not 
taken  issue  on  the  plea.  (Breese,  19.)  The  second  objection 
on  the  instructions  is  not  tenable.  It  is  not  perceived  in  rela- 
tion to  the  question  of  law  raised  on  this  point  in  the  cause, 
how  more  appropriate  instructions  could  have  been  given. 
They  are  not  only  full,  guarded  and  precise,  but  particularly  just 
and  applicable  to  the  cause  and  the  facts.  The  third  ground, 
it  is  apparent,  could  not  be  raised  in  the  cause  in  this  Court  ; 
no  objection  was  made  to  them  in  the  Court  below,  and  there- 
fore none  can  be  raised  here. 

It  is  not  however  to  be  understood  that  there  could  have 
been  any  just  exception  to  them  for  their  character  or  legality. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


WILLIAM  CUKTIS,  plaintiff  in  error,  v.  THE  PEOPLE  OF 
THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Madison. 

INDICTMENT. — An  indictment  for  an  assault  with  intent  to  kill  and  mur- 
der, should  not  only  charge  the  intent  to  have  been  .malicious  and  unlawful, 
but  the  felonious  intent,  and  the  extent  of  the  crime  intended  to  be  per- 
petrated, should  be  distinctly  set  forth. 

[*286]        *AT  the  October  term,  1833,  of  the  Madison  Cir- 
cuit   Court,    the  Hon.  T.  W.   Smith  presiding,  the 
grand  jury  presented  the  following  indictment : 
"  State  of  Illinois, ) 
Madison  County,  [  S8* 

Of  the  October  term  of  the  Madison  Circuit  Court,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty-three, 
the  grand  jurors,  chosen,  selected,  and  sworn,  in  and  for  the 
county  of  Madison,  in  the  name  and  by  the  authority  of  the 
People  of  the  State  of  Illinois,  upon  their  oaths  present,  that 
William  Curtis,  on  the  thirty-first  day  of  August,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  thirty-three,  at 
the  county  of  Madison  aforesaid,  with  force  and  arms  in  and 
U]>on  the  body  of  one  Jacob  C.  Bruner,  then  and  there  in  the 
peace  being,  did  make  an  assault,  and  him,  the  said  Jacob  C. 
Bruner,  with  a  certain  stone  and  also  a  brickbat,  which  he,  the 
Baid  Curtis,  then  and  there  held  in  his  right  hand,  did  then  and 

Seell  111.  1;  Mill.  499. 


DECEMBEE  TEEM,  1836.  286 

Curtis  v.  The  People. 

there  beat  and  bruise,  and  otherwise  ill  treat,  so  that  his  life 
was  then  and  there  greatly  despaired  of,  with  an  intent,  him, 
the  said  Jacob  C.  Bruner,  then  and  there,  of  his  malice  afore 
thought,  to  kill  and  murder,  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  People  of  the  State  of  Illinois. 

JAMES  SEMPLE,  Att'y  Gen'l." 

Before  pleading,  the  defendant  moved  the  Court  to  quash 
the  indictment,  which  motion  was  overruled.  He  thereupon 
pleaded  not  guilty,  and  the  jury  found  him  "guilty  of  an  as. 
gault  and  battery."  The  defendant  then  moved  to  be  dis- 
charged, "for  the  reason  that  the  jury  did  not  assess  the  fine.'' 
This  motion  was  overruled. 

The  Court  then  sentenced  him  to  pay  a  fine  of  $20,  and  to 
be  imprisoned  twenty  days,  and  to  pay  the  costs  of  the  prose- 
cution, and  to  be  committed  until  the  said  fine  and  costs  should 
be  fully  paid. 

On  the  trial,  the  following  bill  of  exceptions  was  taken : 

"Be  it  remembered,  that  on  the  trial  of  this  cause,  the 
Attorney  General,  in  behalf  of  the  People,  called  a  witness, 
who  was  sworn,  and  among  other  things  stated  that  the  de- 
fendant threw  a  stone  or  brickbat  at  him  ;  to  which  statement 
going  to  the  jury  in  evidence,  the  defendant  by  h:s  attorney 
objected,  which  objection  was  overruled  by  the  Court,  to 
which  opinion  of  the  Court  the  defendant  excepts.  The  de- 
fendant by  his  attorney  also  asked  the  Court  to  give  to  the  jury 
the  following  instructions : 

1.  That  they  must  believe  that  the  proof  corresponds  with 
the  allegations  of  the  indictment,  strictly,  in  every  material 

point,  otherwise  they  must  acquit. 

[*28T]         *2.     If  the  jury  have  any  doubt  that  Curtis  in- 
flicted the  wounds  with  a  stone  and  brickbat  wThich 
he  held  in  his  right  hand  as  charged  in  the  indictment,  they 
must  acquit. 

3.  Evidence  that  the  defendant  inflicted  the  wound,  by 
throwing  or  casting  a  stone  or  brickbat,  is  not  sufficient  to  con- 
vict under  the  present  indictment. 

All  of  which  instructions  were  refused  by  the  Court ;  to 
which  opinions  of  the  Court  the  defendant  excepts  and  pi-ays 
this  his  bill  of  exceptions  to  be  signed  and  sealed  by  the  Court 
and  made  part  of  the  record  in  the  above  entitled  cause. 

THEO'S  W.  SMITH.  [L.  s.]" 

The  defendant  assigned  for  error  the  refusal  of  the  Court 
to  quash  the  indictment  and  the  refusal  to  discharge  the  defend- 
ant after  the  verdict,  and  the  several  opinions  of  the  Court 
to  which  exceptions  weie  taken  on  the  trial  in  the  Court  below. 


287  VANDALIA. 


Curtis  r.  The  People. 


JESSE  B.  THOMAS,  Jr.  and  DAVID  PRICKETT,  for  the  plaintiff 
iu  error,  relied  upon  the  following  points  and  authorities: 
I.     The  indictment  should  have  been  quashed, 

1.  Because  the  offense  is  an  attempt  to  commit  a  felony 
and  the  indictment  does  not  allege  it  to  have  been  doneunlaw- 
fully  and  feloniously. 

The  criminal  intent  must  accompany  the  act,  and  from  the 
intention  alone  is  it  determinable  whether  the  act  be  criminal 
or  innocent;  it  is  alone  punishable,  being  the  very  gist  of  the 
charge,  and  certain  technical  words  alone  express  that  intention, 
according  to  the  different  degrees  of  guilt,  and  they  can  not  be 
RippliecTby  any  circumlocution.  1  East's  C.  L.  446-7 ;  1  Chit. 
C.  L.  231,  C;  Curtis  v.  The  People,  Breese,  197;  and  brief  iu 
case  of  Reuben  Clark  v.  The  People,  and  the  authorities  there 
cited.  (Ante  117.) 

In  precedents  of  indictments  for  this  offense,  it  is  charged 
to  have  been  done  unlawfully  and  feloniously.  Chit.  C.  L. 

2.  Because  there  is  uncertainty  in  describing  the  offense 
committed  and  the  manner  of  its  commission. 

"With  the  single  exception  that  an  indictment  can  not  be 
amended,  all  the  rules  that  apply  to  civil  pleadings  apply  with 
increased  force  and  greater  strictness  to  criminal;  and  an  in- 
dictment should  be  as  certain,  clear  and  explicit  as  a  declara- 
tion. 1  Sand.  250  and  n.  1;  1  ChitC.  L.  169-175,  280-1;  1  Stark. 
Ev.  252-255;  1  Chit  Plead.  216-237,  255;  4  Blac.  Com.  306-7 
et  noti#;  Breese,  4. 

II.  The  Court  erred   in  permitting  evidence  to   be  given 
to  the  jury  that  the  defendant  threw  stones  and  ^brickbats  at 

Jacob  C.  Bruner  and  struck  him  therewith,  under  the 
[*288]     indictment,  which  *  charged  that  he  struck  B.  with 

a  certain  stone  and  brickbat,  which  he  held  in  his  right 
hand. 

The  precedents  all  show  that  indictments  should  be  framed 
aecordingto  the  facts,  as  for  casting  stones,  etc.  Chit.  C.  L. 

III.  The  Court  had  no  right  to  give  judgment  against  the 
defendant  on  a  conviction  of  assault  and  battery,  and  should 
have  discharged  him. 

1.  Justices  of  the  peace  have  exclusive  original  jurisdiction 
in  such  cases.     E.  L.  410  §  12.     (Gale's  Stat.  421.) 

2.  The  common  law  of   Great  Britain  with    regard  to 
criminal  matters  is  not  in  force  in  this  State.  E.  L.  425,  (Gale's 
Stat.  440),  171 ;   (Gale's  Stat.  199)  enacting  clause  (et  seq.) 
Crim.  Code,  213  §  178,  (Gale's  Stat.  232)  214  §  181,   209 
(Gale's  Stat.  229)  §§  159,  162. 

3.  The  courts  of   this  State  can  not  obtain  jurisdiction  by 
common  law,  directly  or  indirectly,  of  any  matter  of  which 

mi 


DECEMBER  TEEM,  1836.  286 

Curtis  0.  The  People. 

their  jurisdiction  is  taken  away  by  statute.    R.  L.  410  §   178. 
(Gate's  Stat  421.) 

IV.  The  Court  erred  in  giving  a  judgment  of  fine  and  im- 
prisonment against  defendant  and  that  he  should  stand  com- 
mitted until  fine  and  costs  were  paid. 

1.  The  offense  is  delined  by  the  Criminal  Code  and  should 
have  been  punished  as  therein  provided.     R.  L.  180  (Gale's 
Stat  206)  §§  51,  52  and  53;  R.  L.  209  §  159.     (Gale's  Stat. 
229.) 

2.  If  the  Court  had  no  jurisdiction  in  this  case  by  the  com- 
mon law,  they  had  no  power  to  sentence  defendant  to  impris- 
onment until  fine  and  costs  were  paid.    R.  L.  239  §  163.  (Gale's 
Stat,  229.) 

3.  The  whole  course  of  legislation  in  this  State  shows  that 
imprisonment  never  was  intended  to  be  inflicted  as  a  portion 
of  the  penalty  for  assaults  and  batteries.    R.  L.  402,  411  §  12. 
(Gale's  Stat  422.) 

V.  The  jury,  in  finding  a  person  guilty  of  assault  and  bat- 
tery, should  assess  the  tine  and  in  such  cases  the  Court  has  no 
discretionary  power.     R  L.  403  (Gale's  Stat.  416)  §  6,  411 
(Gale's  Stat  416)  §  12.     The  Court  therefore  erred  in  this 
case  in  fixing  the  amount  of  fine,  which  should  have  been 
assessed  by  the  jury  if  they  had  the  power  to  find  the  defend- 
ant guilty  of  the  offense. 

The  legislature,  in  providing  punishments  for  crimes,  seem 
to  have  intended,  in  most  cases,  that  the  measure  of  punish- 
ment should  be  determined  by  the  jury.  Vide  Crim.  Code. 

N".  W.  EDWAEDS,  Attorney  General,  for  the  defendants  in 
error.  • 

LOCKWOOP,  Justice,  delivered  the  opinion  of  the  Court: 
Curtis  was  indicted  for  an  assault  with  intent,  of  his  malice 
aforethought,  to  kill  and  murder;  but  the  indictment 
does  not  *charge  the  act  to  have  deen  done  felo-  [*289] 
nwusly.  t)n  the  trial  the  defendant  was  convicted  of 
an  assault  and  battery;  and  the  Court  below  gave  judgment. 
The  only  point  necessary  to  be  decided  is,  whether  the  indict- 
ment is  sufficient  In  the  case  of  Henry  Curtis  v.  The  Peo- 
ple,  (Breese,  197)  this  very  point  was  made  and  it  was  held 
that  it  was  necessary  "  That  the  intent  should  not  only  be 
charged  to  be  in  itself  malicious  and  unlawful,  but  that  the 
felonious  design  and  extent  of  the  crime  intended  to  be  per- 
petrated should  be  distinctly  set  forth,  otherwise  the  inference 
would  be  that  the  assault  might  be  excusable  or  justifiable." 
For  this  defect  in  the  indictment  the  judgment  below  nrust 
be  reversed.  Judgment  reversed. 

293 


2S9  YANDALIA. 


Swafford  t>.  The  People. 


SAMUEL  SWAFFORD,  plaintiff  in  error,  v.  THE  PEOPLE 
OF  THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Franklin. 

The  statute  does  not  authorize  appeal  bonds  to  be  amended  in  criminal 
cases.    The  statute  regulating  appeals  in  civil  cases  is  otherwise. 

W.  B.  SCATES,  for  the  plaintiff  in  error. 

N.  W.  EDWARDS,  Attorney  General,  for  the  defendants  in 
error. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  a  prosecution  had  under  the  statute  of  this  State, 
entitled  "  An  act  to  extend  the  jurisdiction  of  Justices  of  the 
Peace."  (R.  L.  402 ;  Gale's  Stat.  416.)  '  A  verdict  was  ren- 
dered bef  ore  the  justice,  and  j  udgment  thereupon  against  the 
defendant,  Swafford,  for  fifty  dollars  and  costs,  from  which  an 
appeal  was  taken  to  the  Circuit  Court  of  Franklin  county,  un- 
der the  7th  section  of  the  above  recited  statute,  which  is  as  fol- 
lows :  "  If  any  person  shall  be  dissatisfied  with  the  verdict  of 
the  jury  given  before  any  justice  of  the  peace  because  of  the 
tine  being  too  low,  or  because  the  defendant  may  have  been 
acquitted,  he  shall  be  permitted  to  remove  the  said  case  into 
the  Circuit  Court  upon  his  executing  bond  to  the  People  of 
the  State  of  Illinois,  before  the  clerk,  etc."  The  appeal  bond 
was  given  by  the  said  defendant,  Swafford,  to  Eve  Reynolds 
(upon  whom  the  assault  and  battery  was  committed) and  to  the 
People.  The  appeal  was  dismissed  in  the  Circuit  Court  on  ac- 
count of  the  informality  of  the  bond.  From  this  decision  of 
the  Circuit  Court  of  Franklin  county  the  cause  is 
[*290]  *brought  here  by  a  writ  of  error.  The  bond  in  this 
case  ought  clearly  to  have  been  given  by  the  defend- 
ant, Swafford,  to  the  People  of  the  State  of  Illinois,  as  re- 
quired by  the  statute.  The  statute  does  not  authorize  appeal 
bonds  to  be  amended  in  criminal  cases.  The  statute  regulat- 
ing civil  proceedings  has  no  application  to  this. 
The  judgment  of  the  Court  below  is  affirmed. 

Judgment  affirmed. 

CITKD  :  12  111.  78  ,  13  111.  133  ;  15  111.  303. 


DECEMBER  TEEM,  1836.  290 

Israel  et  al.  v.  The  Town  of  Jacksonvilla. 


J.  G.  ISRAEL,  J.  TAGGART,  and  S.  E.  SMITH,  plaintiffs 
in  error,  V.THE  PRESIDENT  AND  TRUSTEES  OF  THE 
TOWN  OF  JACKSONVILLE,  defendants  in  error. 

Error  to  Morgan. 

FOKM  OP  ACTION. — Debt  is  the  proper  action  to  bring  for  a  violation  of 
an  ordinance  of  an  incorporated  town. 

SUMMONS — INFORMALITIES. — A  summons  from  a  justice  of  the  peace  to 
the  defendant,  to  answer  •'  for  a  violation  of  an  ordinance  of  said  town  rel- 
ative to  nuisances,"  is  informal  and  insufficient. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court . 

This  was  an  action  brought  by  the  president  and  trustees 
of  the  town  of  Jacksonville,  before  a  justice  of  the  peace  of 
Morgan  county,  against  Israel,  Taggart,  and  Smith,  for  a  vio- 
lation of  the  ordinance  of  the  said  town  of  Jacksonville,  and 
to  collect  a  fine  for  said  violation. 

The  following  is  a  copy  of  the  sumnons  issued  by  the  jus- 
tice of  the  peace,  in  favor  of  "  The  President  and  Trustees," 
etc.,  against  the  aforesaid  defendants,  to  wit : 
"  State  of  Illinois,  Morgan  County. 
The  People  of  the  State  of  Illinois, 

To  E.  R.  Metcalf,  Town  Constable,  or  any  Constable  of  said 
County,  Greeting :  You  are  hereby  commanded  to  summon  J. 
G.  Israel,  J.  Taggart  and  S.  R.  Smith,  to  appear  before  me  at 
my  office  in  Jacksonville,  on  the  1st  day  of  September,  1836,  at 
one  o'clock,  p.  M.,  to  answer  the  complaint  of  the  President  and 
Trustees  of  the  Town  of  Jacksonville,  for  a  violation  of  an 
ordinance  of  said  town  relative  to  nuisances,  and  hereof  make 
due  return  as  the  law  directs. 

Given  under  my  hand  and  seal  this  27th  day  of  August,  A. 
D.  1836.  S.  S.  BROOKS,  J.  P."  [L.  s.l 

The  defendants  were  summoned  and  appeared  before  the 
justice  of  the  peace.     Upon  the  trial  the  defendants  moved  to 
eet  aside  the  wan-ant  for  irregularity;  which  motion 
was  overruled  *by  the  justice,  and  judgment  rendered     [*291] 
in  favor  of  the  plaintiffs   for  five   dollars  and  costs. 
From  this  decision  an  appeal  was  taken  to  the  Circuit  Court 
of  Morgan  county. 

Upon  the  cause  coming  on  for  trial,  the  defendants  moved 
again  to  set  aside  the  warrant  and  reverse  the  decision  of  the 
justice,  but  the  Circuit  Court  overruled  the  motion,  and 
affirmed  the  judgment  of  the  justice,  to  reverse  which  the 
cause  is  brought  to  this  Court. 

CITED  :  36  111.  180.    See  11  111.  502. 

296 


201  YANDALIA. 


Ransom  P.  Jones. 


The  statute  under  which  this  suit  was  brought  is  in  the 
following  words  :  "  The  President  and  Trustees  may  impose 
tines  for  the  breach  of  these  ordinances,  but  no  fine  shall  be 
inflicted  on  any  one  person  for  any  one  breach  of  any  ordi- 
nance of  more  than  live  dollars;  which  fine  may  be  recovered 
Iwfore  any  justice  of  the  peace  by  action  of  debt,  in  the  name 
of  the  President  and  Trustees,"  etc.  In  bringing  the  suit  the 
plaintiffs  have  not  complied  with  the  terms  of  the  statute. 
l)cl)t  would  have  been  most  clearly  the  form  of  action. 

The  judgment  of  the  Circuit  Court  is  reversed. 

Judgment  reversed. 


DAVID  RANSOM,  survivor  of  John  Ransom,  appellant,  v. 
GRIFFEY  JONES,  who  sues  for  the  use  of  Elisha  G. 
Adams,  appellee. 

Appeal  from  Schuyler. 

POSSESSION  OF  NOTE — EVIDENCE  OP  TITLE. — The  possession  of  a  note  or 
bond  wprima  facie  evidence  of  the  legal  title  to  the  instrument,  and  of  a 
right  to  use  the  name  of  the  person  to  whom  it  is  payable. 

ACTION  DY  ASSIGNEE — USE  OF  ASSIGNOR'S  NAME. — Where  there  has  been  a 
transfer  of  a  bond  or  instrument,  without  a  regular  assignment  to  authorize 
the  assignee  to  institute  a  suit  in  his  own  name,  courts  will  always  permit 
the  use  of  the  name  of  the  person  to  whom  it  is  made  payable,  without  an 
express  power  to  do  so.  Indeed,  courts  are  bound  to  protect  the  interest  of 
the  holder,  and  prevent  even  a  release  of  the  debt  after  such  transfer,  or  a 
discluirge  of  the  action  by  the  person  in  whose  name  it  has  been  com- 
menced. 

NOTE  PAYABLE  IN  WORK. — A  note  payable  in  mason  work  is  not  assign- 
able so  as  to  enable  the  assignee  to  plead  it  as  a  set-off  to  an  action  against 
him,  or  to  enable  him  to  institute  a  suit  thereon  in  his  own  name. 

ATTOHNEY. — When  an  attorney  commences  an  action  in  the  name  of  an- 
other, or  apj>ears  for  another,  the  court  will  presume  that  he  has  authority  to 
do  so,  until  the  contrary  appear. 

THIS  was  an  action  originally  instituted  by  the  appellee,  be- 
fore Martin  De  Witt,  a  justice  of  the  peace  of  Schuyler  coun- 
ty, upon  the  following  promissory  note  : 

"Twelve  months  after  date,  we  or   either   of  us, 
Z92]     promise  to  pay  *Griffey  Jones  thirty-five  dollars,  for 
value  received,  as  witness  my  hand  and  seal,  April  14, 
1835. 

CITED:  Fraudulent  judgment.    60  111.  83,  85.    See 5  Gilm.  67:  40111.  399 

- 


DECEMBER  TEEM,  1836.  292 

Ransom  v.  Jones. 

his 

DAVID  H  RANSOM, 
mark, 
his 
Test,  A.  PAKIS.  JOHN    ^<j  RANSOM." 

mark. 

The  defendants  produced  the  following  due  bill  as  a  set- 
off  to  the  plaintiff's  demand: 

"  Due  Hinman  and  Clift  or  bearer,  thirty-five  dollars,  to  be 
paid  in  brick  work,  immediately,  if  demanded. 

his 
Witness,  B.  HINMAN.  GRIFFITH  M  JONES." 

mark. 

Directly  under  the  due  bill  was  a  memorandum  in  the 
words  and  figures  following,  to  wit : 

"  Demand  made  soon  after  date  of  note,  but  could  get  no 
work.  B.  HINMAN." 

And  upon  the  back  of  said  due  bill  was  the  following : 
"  We  assign  the  within  to  D.  and  J.  Ransom  or  bearer. 

HINMAN  &  CLIFT." 

The  justice  rendered  a  judgment  for  the  plaintiff,  for  $35 
and  costs,  from  which  the  defendants  appealed  to  the  Circuit 
Court,  where  the  cause  was  tried  at  the  June  term,  1836,  be- 
fore the  Hon.  Richard  M.  Young,  and  the  judgment  of  the 
justice  affirmed  with  costs.  The  defendants  appealed  to  this 
Court. 

W.  A.  HINMAN,  for  the  appellant. 
W.  A.  MINSHALL,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  commenced  before  a  justice  of  the  peace, 
on  a  promissory  note,  payable  to  Jones,  and  taken  by  appeal 
to  the  Circuit  Court,  and  from  the  Circuit  Court  to  this  Court. 
The  appellants  objected  to  the  form  of  the  action,  and  offered  a 
note  as  a  set-off  in  the  Court  below.  The  grounds  of  error 
assumed  by  the  appellants,  are  :  1st.  That  the  suit  could  not 
be  instituted  by  the  holder  of  the  note  in  the  name  of  the  payee 
for  his  use.  2d.  That  the  note  which  is  payable  to  another 
person  in  labor,  and  assigned  to  the  appellants,  ought  to  have 
been  allowed  as  a  set-off. 

Much  irrelevant  evidence  is  embodied  in  the  case,  to  which 
it  is  unnecessary  to  advert.      The  two  points  named 
are  considered  *as  embracing  the  whole  case,  and  on     [*293] 
the  proper  determination  thereof,  the  cause  must  turn. 

297 


YAKDALIA. 

Ransom  v.  Jo  nes. 


In  regard  to  the  first  point,  a  long  and  undisturbed  series  of 
adjudications  have  settled  the  mode  so  familiarly  in  use,  of  in- 
stituting the  suit  in  the  name  of  the  payee  of  the  note,  or  obligee 
in  the  bond,  by  the  holder,  and  declaring  it  to  be  for  his  use,  for 
the  pur|x>ses  of  recovery  and  control  of  the  action  and  judg- 
ment had  thereon. 

The  possession  of  the  note  or  bond  is  prima  facie  evidence 
of  the  leiral  title  to  the  instrument,  and  of  a  right  to  use  the 
name  of  the  person  to  whom  it  is  payable.  It  is  admitted  that 
warrants  of  attorney  were  most  usually  required  to  be  given  to 
authorize  the  commencement  of  a  suit  by  an  attorney,  or  to 
enter  an  appearance  for  a  party.  Where  an  attorney  com- 
mences an  action  in  the  name  of  another,  or  appears  for 
another,  the  Court  will  presume  that  he  has  authority  to  do 
so,  until  the  contrary  is  shown  ;  and  if  such  suit  be  instituted, 
or  appearance  entered  without  legal  authority,  the  remedy  is 
by  motion  to  the  court  founded  on  evidence,  to  show  the 
abuse  (in  acting  without  such  authority)  of  the  process  of  the 
Court,  or  irregular  act  of  the  attorney  in  entering  such  appear- 
ance. Where  there  has  been  a  transfer  of  a  bond  or  instrument, 
without  a  regular  assignment  to  authorize  the  assignee  to 
institute  a  suit  in  his  own  name,  courts  will  always  permit  the 
use  of  the  name  of  the  person  to  whom  it  is  made  payable, 
without  an  express  power  so  to  do.  The  party  having  the  legal 
right  to  the  debt  should  have  the  necessary  power  to  use  the 
form  necessary  to  recover  the  debt.  Indeed  courts  are  bound 
to  protect  the  interest  of  the  holder,  and  prevent  even  a 
release  of  the  debt  after  such  transfer,  or  a  discharge  of  the 
action  by  the  person  in  whose  name  it  has  been  commenced. 
The  decision  of  the  Circuit  Court  was  correct  on  this  point. 

As  to  the  second,  there  can  not  be  a  doubt  that  the  note 
could  not  be  a  set-off  in  the  present  action.  The  promise  is 
"to pay  thirty-five  dollars  to  Ilinman  &  Clift,  or  bearer,  in 
mason  work"  The  statute  makes  only  such  notes  assignable 
as  promise  to  pay  money  or  articles  of  personal  property,  or 
any  sum  of  money  in  personal  property,  or  acknowledge  any 
sum  of  money  to  be  due  to  any  other  person.  (E.  L. 
[*294]  482  ;  Gale's  Stat.  255.)  The  note  offered  as  a  ^set- 
off  though  assigned  to  the  appellants,  was  not  assign- 
able under  the  statute,  so  as  to  authorize  an  action  to  be  com- 
menced thereon  in  their  names ;  and  if  they  could  not  do  this 
they  could  not  set  it  off  in  the  present  action. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  ny  SCAMMOX  —  Deeds  or  obligations  containing  mutual  covenants 
e  nut  awugnable.     Beezley  r.  Jones,  ante  34. 


art-  n 


DECEMBER  TEEM,  1836.  294 

Ransom  v.  Jones. 

A  note  for  the  payment  of  a  certain  sum  of  money  "  which  may  be  dis- 
charged in  pork,"  is  assignable.  Thompson  v.  Armstrong,  Breese,  23. 

Courts  of  law  will  take  notice  of,  and  protect,  the  rights  of  assignees 
against  all  persons  having  either  express  or  implied  notice  of  the  trust  or 
assignment  of  chosfs  in  action.  Johnson  v.  Bloodgood,  1  Johns.  C.  51 ;  War- 
dell  v.  Eden,  2  Johns.  C.  121;  Van  Vechten  v.  Graves,  4  Johns.  403;  Lit- 
tlefield  v.  Storey,  3  Johns.  425;  Anderson  v.  Van  Alen,  12  Johns.  343; 
Briggs  v.  Dorr,  19  Johns.  95;  Henry  v.  Milham,  Greene,  266;  Jones  v.  Wit- 
ter, 13  Mass.  304;  Perkins  v.  Parker,  1  Mass.  117;  Day  v.  Whitney,  1  Pick. 
504. 

The  assignor  of  a  chose  in  fiction  can  not  defeat  a  suit  brought  in  his  name 
by  his  assignee,  by  a  release  to  the  defendant,  who  has  notice  of  the  assign- 
ment. And  to  a  release  pleaded,  the  plaintiff  may  reply  the  assignment,  and 
that  the  defendant  had  notice  of  it.  Andrews  v.  Beecker,  1  Johns.  C.  411; 
Raymond  v.  Squire,  11  Johns.  47. 

So  to  a  plea  of  payment.     Littlefield  v.  Storey,  3  Johns.  425. 

Where_the  assignor  of  a  judgment  enters  up  satisfaction  on  the  record, 
after  notice  to  the  defendant  of  the  assignment,  the  Court,  on  motion,  will 
order  the  entry  of  satisfaction  to  be  vacated.  Wardell  v.  Eden,  2  Johns.  C. 
121,  258. 

Where  an  assignee  recovers  judgment  in  the  name  of  his  assignor,  and 
takes  out  a  ca.  sa.,  giving  the  sheriff  notice  of  his  ecfuitable  interest;  and  the 
sheriff,  having  arrested  the  defendant,  suffers  him  to  escape,  the  assignee 
may  maintain  an  action  against  the1  sheriff,  in  the  name  of  the  assignor, 
which  the  sheriff  can  not  defeat,  by  taking  a  release  from  the  nominal  plaint- 
iff. Martin  v.  Hawks,  15  Johns.  405. 

The  assignment  of  a  chose  in  action  need  not  be  by  writing  under  seal; 
a  delivery  of  it,  for  a  valuable  consideration,  is  sufficient.  Prescott  v.  Hull, 
17  Johns.  284;  Briggs  v.  Dorr,  19  Johns.  95. 

The  assignee  of  a  chose  in  action,  who  takes  it  as  collateral  security  for  a 
debt,  has  a  power  coupled  with  an  interest,  and  will  be  protected  as  an  as- 
signee against  the  release  of  his  assignor,  made  after  notice  of  the  assign- 
ment to  the  debtor. 

To  constitute  such  an  assignee  of  a  chose  in  action  as  courts  of  law  will 
protect  against  the  acts  of  his  assignor,  the  assignment  need  not  be  absolute, 
or  of  the  whole  subject-matter.  It  is  enough  that  it  carry  to  the  assignee  a 
power  coupled  with  an  interest.  Wheeler  «.  Wheeler,  9  Cowen,  34. 

A  bond,  executed  by  the  plaintiff, .and  assigned  to  the  defendant  by  the 
obligee,  before  the  commencement  of  the  action,  may  be  set-off.  Tuttle  ». 
Bebee,  8  Johns.  152;  Raymond  v.  Squire,  11  Johns.  48  (See  Wake  v.  Tink- 
ler, 16  East,  36). 

In  an  action  brought  by  an  assignee  of  a  chose  in  action,  in  the  name  of 
the  original  creditor,  the  Court  will  look  to  the  person  who  is  beneficially 
interested;  and  the  defendant  may  set  off  a  debt  due  from  him,  as  well  as 
if  the  suit  had  been  commenced  in  his  name.  Corser  v.  Craig,  1  Wash. 
C.  C.  R.  424. 

A  nominal  plaintiff,  suing  for  the  benefit  of  his  assignee,  can  not,  by  a 
dismissal  of  the  suit,  under  a  collusive  agreement  with  the  defendant,  create 
a  valid  bar  against  any  subsequent  suit  for  the  same  cause  of  action.  Welch 
r.  Mandeville,  1  Wheat.  233;  3  Peters'  Cond.  B.  554. 

Where  a  chose  in  action  is  assigned  by  the  owner,  he  can  not  interfere  to 
defeat  the  rights  of  the  assignee  in  the  prosecution  of  a  suit  brought  to  en- 
force those  rights. 

It  is  immaterial,  in  this  respect,  whether  the  assignment  be  good  at  law, 
or  in  equity  only.  Mandeville  v.  Welch,  5  Wheat.  277;  4  Peters1  Cond.  R. 
642. 

Courts  of  law,  as  well  as  courts  of  equity,  will  take  notice  of  the  assign- 
ment of  choses  in  action,  and  to  every  substantial  purpose  will  protect  the 


VANDALIA. 

Stringer  v.  Smith  et  al. 


awimeo  The  beneficial  interest  of  the  assignee  is  so  far  regarded, 
I  *295]  that  the  defendant  may  set  *off  a  debt  due  the  assignee,  in  like  man- 
ner, as  if  the  suit  had  been  brought  in  his  own  name. 

If  it  be  necessary,  in  an  action  brought  upon  an  assigned  chose  in  action, 
that  the  interest  of  the  person  for  whose  benefit  the  suit  is  brought  should 
ni  war  in  the  pleadings,  it  is  sufficient  if  it  appear  in  any  part  of  the  plead- 
inis.  Oorserr.  Craig,  1  Wash.  C.  C.  B.  424  _,...,  , 

The  nominal  plaintiff  may  dismiss  a  suit  brought  in  his  name,  by  a  cred- 
itor who  has  not  an  assignment  of  the  cause  of  action.  Welsh  v.  Mandeville, 
7  Or  inch,  152;  2  Peters'  Cond.  R.  452. 

The  death  of  an  assignor  does  not  defeat  the  assignment,  but  the  assignee 
mnv  use  the  name  of  the  executor  or  administrator  of  the  assignor,  to  re- 
cover the  money.  Dawes  v.  Boylston,  9  Mass.  337;  Gotta  v.  Perkins,  12 
HUB.  206. 


DANIEL  STRINGER,  plaintiff  in  error,  v.  JOHN  SMITH 
and  WILLIAM  SMITH,  defendants  in  error. 

Error  to  Sangamon. 

A  writ  of  error  will  not  lie  to  the  final  judgment  of  the  Circuit  Court  in  a 
case  tried  by  the  Court  without  the  intervention  of  a  jury. 

THIS  cause  was  tried  at  the  October  term,  1835,  of  the  San- 
gamon Circuit  Court,  before  the  Hon.  Thomas  Ford,  and  a 
judgment  rendered  for  the  appellees  for  $66.88. 

C.  "WALKER,  for  the  plaintiff  in  error. 

J.  T.  STUAET  and  M.  McCoNNELL,  for  the  defendants  in 
error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
Tin's  was  an  action  of  assumpsit  commenced  before  a  justice 
of  the  peace,  and  was  brought  by  appeal  to  the  Circuit  Court 
of  Sangamon.  The  cause  was  tried  by  the  Court  without  the 
intervention  of  a  jury.  After  the  plaintiff' s  evidence  was 
closed,  the  parties  being  heard,  the  cause  was  left  to  the  Court 
for  ite  determination  on  the  evidence  adduced,  and  the  law  aris- 
ing thereon.  The  Circuit  Court  gave  judgment  for  the  plaint- 
iff*, and  a  writ  of  error  is  now  prosecuted  to  reverse  this  judg- 
ment. 

It  appears  from  the  record,  that  after  judgment  had  been 
rendered  for  the  plaintiffs  the  defendant's  counsel  excepted, 
in  the  words  of  the  bill  of  exceptions,  "  to  the  judgment  of 
the  Ciicuit  Court."  This  case  is  directly  in  point  with  the 
case  of  Saqffbrdv.  Docenor,  decided  in  December  term,  1834. 

330 


DECEMBER  TERM,  1836.  296 

Thornton  v.  Davenport  et  aft. 

(ante  16t>.     See  also  Gilmore  v.  Bollard,  ante  252  ;  White  etal. 
v.  Wiseman,  ante  169.)    The  bill  of  exceptions  to  the  final  judg- 
ment of  the  Circuit  Court  could  not  lie.     It  was  neither  for 
admitting  improper  evidence,  nor  rejecting  proper  evi- 
dence ;  and  there  could  not  occur  by  any  "possibility,     [*296] 
any  misdirection  to  a  jury,  because  there  was  none. 
Then  the  exception  would  be  to  the  judgment  of  the  Circuit 
Court  on  the  facts  proven  and  the  law  of  the  case,  and  would, 
if  recognized  as  a  proper  course,  be  equivalent  to  adopting  a 
new  mode  for  obtaining  a  new  trial  or  rehearing  of  the  cause. 

The  defendant  should  have  moved  for  a  nonsuit,  and,  if  re- 
fused, taken  his  exceptions  to  the  opinion  of  the  Court  in  so 
refusing.  Pie  might  have  also  demurred  to  the  evidence,  and 
asked  the  judgment  of  the  Court  on  its  sufficiency  to  sustain  a 
recovery,  or  he  might  have  had  a  jury,  and  asked  for  instruc- 
tions on  the  case  from  the  Court.  It  is,  however,  wholly  un- 
necessary to  re-investigate  these  points  again,  because  they  are 
examined  at  large  in  the  case  referred  to,  and  no  sufficient 
reasons  appear  to  shake  that  decision,  or  show  any  inconven- 
ience resulting  therefrom,  as  a  rule  of  proceeding,  if  the 
parties  take  the  modes  of  proceeding  pointed  out  in  that  decis- 
ion. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


WILLIAM  T.  THOENTON,  appellant,  v.  IRA  DAVENPORT, 
and  SMILY  H.  HENDERSON,  appellees. 

Appeal  from  Morgan. 

STATUTE  ov  FRAUDS — DEED — CONSIDERATION. — A  deed  made  upon 
valuable  consideration,  does  not  come  within  the  provisions  of  the  statute  of 
frauds  and  perjuries. 

POSSESSION  REMAINING  WITH  VENDOR. — All  conveyances  of  goods  and 
chattels,  where  the  possession  is  permitted  to  remain  with  the  donor  or  ven- 
dor, is  fraudulent  per  se,  and  void  as  to  creditors  and  purchasers,  unless  the 
retaining  of  possession  be  consistent  with  the  deed." 

SAME — CONSISTENT  WITH  CONVEYANCE. — But  where  from  the  nature  and 

CITED:  4  Scam.  579;  3  Gilm.  464;  14  111.  389;  17  111.  81;  19  111.  593;  21 
HI.  73;  22  111.  146;  41  111.  369;  59  111.  118;  84  111.  170,  474;  85  111.  b89.  477; 
100  111.  4.54;  108  111.  507. 

*Sale  of  chattels — Possession  retained-by  vendor — How  far  evidence  of 
fraud. 

Retention  of  possession  of  chattels  by  r  en  dor  utter  what  purports  to  be  an 
absolute  sale,  is  held  in  Illinois  to  be  fraudulent  per  se.  See  above  cita- 
tions, especially  Lawson  v.  Funk,  108  111.  502;  Allen  v.  Carr,  85  III.  388; 
Thompson  v.  Yeck,  21  111.  73.  See  Broadwell  v.  Howard,  77  111.  305,  where 

801 


Y  AND  ALIA. 


Thornton  t'.  Davenport  et,  al. 


provWonsof  thfl  convevance  the  possession  i«  to  remain  with  the  vendor, 
ami  the  transaction  is  ixwijide,  its  so  remaining  is  consistent  with  the  deed, 
and  do»»  not  avoid  it.  .  .  .  ,  , 

SAME.— Mortgages,  marriage  settlements,  and  limitations  over  of  chat- 
tels are  valid  against  all  persons  without  delivery  of  possession,  provided 
the  transfer  I*  bona  fMe.  and  tlv>  possession  remain  with  the  person  shown 
to  be  entitled  to  it  by  ti^e  *tipnlntions  of  the  deed. 

Srmble,  that  an  absolute  sale  of  personal  property,  where  the  possession 
remain*  with  the  vendur,  is  void  as  to  creditors  and  purchasers,  though  au- 
thorized bv  the  terms  of  the  bill  of  sale. 

MOHTOAOE— FHAU D.—  The  fact  that  a  mortgage  was  executed  upon  thp 
same  day  that  a  judgment  was  obtained  against  the  mortgagor,  unaccompa- 
nied by  other  circumstances  calculated  to  cast  suspicion  upon  the  transaction 
is  not  of  itself  sufficient  to  attach  to  it  the  imputation  of  fraud. 

Tni8  cause  was  heard  in  the  Circuit  Court,  before  the  Hon. 
Samuel  D.  Lockvvoocl,  at  the  May  term,  18S4,  and  judgment 

rendered  that  the  property  levied  on  was  subject  to 
[*297]  the  execution  *of  the  appellees,  and  that  they  recover 

their  costs  of  suit ;  from  which  an  appeal  was  taken 
by  Thornton  to  this  Court. 

S.  BREESE  and  WM.  THOMAS,  for  the  appellant,  cited  3 
C ranch,  ?3  ;  R.  L.  313-14  ;  1  Powell  on  Mort.  33,  and  notes. 

J.  LAMBOKN,  for  the  appellees. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

By  agreement  of  the  parties,  this  case  was  submitted  to  the 

Court  upon  a  statement  of  facts,  accompanied  by  a  deed  of 

it  was  held  that  delivery  of  warehouse  receipts  was  sufficient  to  pass  prop- 
erty. See  also  111.  Statutes  as  to  record  of  mortgages  and  bills  of  sale. 

That  retention  of  possession  of  property  by  vendor  is  conclusive  evidence 
of  fraud  was  formerly  the  uniform  rule:  Sturtevant  v.  Ballard,  9  Johns.  337; 
Hamilton  r.  Burrel.  1  Cranch,  310;  Lanfear  v.  Suinner,  17  Mass.  110;  Ed- 
wards r.  Harben,  2  T.  R.  587. 

This  is  still  the  law  in  many  States  besides  Illinois:  See  Dempsey  v. 
Gardner,  127  Mass.  381;  Farrar  ».  Smith,  64  Me.  74;  Lang  v.  Stockwell, 
55  N.  H.  561;  Hatetat  v.  Blakeslee,  41  Conn.  301;  Weeks  i:  Prescott,  53 
Vt.  71. 

On  the  other  hand  the  majority  of  modern  cases  ho  Id  that  retention  of 
possession  by  the  vendor  in  such  case  is  only  prima  facie  evidence  of  fraud 
and  may  be  rebutted. 

S,«e  Miller  r.  Pancoast,  29  N.  J.  L.  250;  Boone  v.  Hardie,  83  N.  C.  470; 
Siepe  r.  Barman,  26  Gratt.  563;  Scott  v.  Alford,  53  Tex.  82;  Williams  v. 
Porter,  41  Wis.  422;  Collins  v.  Taggart,  57  Ga.  355. 

The  New  York  authorities  are  substantially  to  the  same  effect,  though, 
perhaps,  not  entirely  harmonious.  Blant  v.  Gabler,  77  N.  Y.  461; 
Twon  r.  Terwilliger,  56  N.  Y.  273;  Mitchell  v.  West,  55  N.  Y.  107;  Han- 
ford  r.  Artcher,  4  Hill,  271.  The  precise  language  of  the  statutes  of  the 
States  of  course  affect  the  question  more  or  less. 

Compare  also  Warner  r.  Norton,  20.  How.  459;  Macdona  v.  Swiney,  8 
IT. ,  C.  L.  R.  73;  Eastwood  v.  Browne,  R.  &  M.  312. 

For  full  discussion  and  citation  of  authorities  see  Corbin's  note  to  1  Benja- 
min on  Sale%  p.  641. 

302 


DECEMBER  TERM,  1836.  297 

Thornton  v.  Davenport  et  al. 

mortgage  made  by  Wilhite  to  Thornton.  By  this  deed,  Wil- 
hite  conveys  to  Thornton  a  variety  of  personal  property,  for 
two  hundred  dollars,  with  a  condition  that  if  Wilhite  will  pay 
to  Thornton,  at  maturity,  a  note  of  two  hundred  dollars,  with 
twelve  per  centum  interest  in  one  year,  then  the  deed  is  to  be 
void,  otherwise  absolute.  It  is  also  stipulated  that  Wilhite  is 
to  retain  possession,  and  to  have  the  use  of  the  property  until 
the  day  of  payment.  He  is,  also,  at  his  own  expense,  to  keep 
the  property  (part  being  live  stock),  and  at  the  expiration  of 
the  year,  if  the  debt  be  not  paid,  deliver  it  up  to  Thornton  in 
good  condition.  The  facts  agreed  upon  are,  that  Wilhite 
was  indebted  to  Thornton  in  the  sum  of  two  hundred  dollars, 
the  amount  for  which  he  executed  his  note,  and  that  the  mort- 
gage was  made  to  secure  this  debt.  Davenport  and  Hender- 
son were  also  creditors  of  Wilhite,  and  on  the  same  day  that 
the  mortgage  was  made,  obtained  a  judgment  against  him, 
and  soon  after,  but  befoie  the  expiration  of  the  year,  levied 
their  execution  on  the  mortgaged  property  in  the  possession 
of  Wilhite. 

Upon  this  statement  of  the  case,  the  Court  below  decided 
the  deed  from  Wilhite  to  Thornton  to  be  void  as  to  the  cred- 
itors of  Wilhite,  and  consequently  subject  to  the  execution  of 
Davenport  and  Henderson.  To  support  this  position,  it  must 
be  shown  that  the  transaction  between  Wilhite  and  Thornton 
was  fraudulent  in  fact,  or  that  the  conveyance  is  of  such  a 
character  that  the  law  will  imply  fraud,  and  that  countervail- 
ing testimony,  of  fair  intention,  will  not  redeem  it  from  this 
inference.  That  the  sale  from  Wilhite  to  Thornton  is  not 
fraudulent  in  fact  is  apparent  from  a  consideration  of  all  the 
circumstances  attending  the  transaction,  as  admitted  by  the 
parties.  The  sufficiency  of  the  consideration  upon  which  the 
mortgage  was  made  is  not  questioned.  It  is  admitted  that 
Wilhite  was  indebted  to  Thornton  in  the  sum  of  two  hundred 
dollars,  and  that  the  property  mentioned  in  the  deed  was 
mortgaged  to  secure  this  debt.  The  only  circumstance  of  a 
questionable  character  is,  the  execution  of  the  mortgage  on 
the  same  day  of  the  rendition  of  the  judgment  against  him,  in 
favor  of  Davenport  and  Henderson.  But  this  fact  unaccom- 
panied by  any  other  circumstance  calculated  to  cast 
suspicion  *upon  the  transaction,  is  not  of  itself  sulU-  [*298] 
cient  to  attach  to  it  the  imputation  of  fraud,  and 
thereby  taint  and  render  void  the  whole  transaction.  The 
transfer  to  Thornton,  in  its  most  unfavorable  aspect,  only 
ajnounts to  a  preference  of  one  creditor  to  another;  a  privi- 
lege to  which  the  debtor  is  always  entitled.  Even  an  insolvent 
debtor  may  prefer  one  creditor  to  another,  and  his  motives  for 

803 


YANDALIA. 


Thornton  r.  Davenport  etal. 


so  doing,  provided  the  preferred  creditor  has  done  nothing 
improper,  can  not  be  inquired  into  ;  nor  is  the  time  when  this 
preference  is  indicated  material,  provided  it  is  anterior  to  the 
lien  set  up  to  avoid  it.  (Marbury  v.  Brooks,  7  Wheat.  556  ;  5 
Peters'  Cond.  R.  345  ;  Spring et  al.  v.S.  C.  Ins.  Co.,  8  Wheat. 
t>(58  ;  5  Peters'  Cond.  R.  434.) 

There  being  no  circumstances  then  attending  the  convey- 
ance of  the  property  from  Wilhite  to  Thornton,  from  which 
fraud  in  fact  can  be  inferred,  it  becomes  necessary  to  inquire 
whether  it  is  alike  free  from  the  inference  of  fraud  in  law.  In 
the  argument  of  the  case,  the  statute  of  frauds  and  perjuries 
was  adverted  to  ;  but  as  the  deed  under  review  was  made 
uj  on  valuable  consideration,  it  does  not  come  within  the  pro- 
visions of  that  statute.  The  case,  therefore,  depends  entirely 
upon  the  principles  of  the  common  law;  and  it  is  to  be  regretted 
that  the  judicial  determinations  relative  to  the  rules  governing 
the  transfer  of  personal  property,  which  are  of  so  much  im- 
portance and  such  general  application,  have  not  been  more 
stable  and  definite.  But  while  the  decisions  of  the  courts  of 
several  of  the  States  have  been  vacillating  and  discordant, 
those  of  England,  as  well  as  those  of  a  large  majority  of  the 
States,  have  been  uniform  and  consistent ;  and  the  principle 
well  established  by  those  decisions  is,  that  all  conveyances  of 
goods  and  chattels,  where  the  possession  is  permitted  to  remain 
with  the  alienor  or  vendor,  is  fraudulent^?1  se,  and  void  as  to 
creditors  and  purchasers,  unless  the  retaining  of  possession  be 
conxiztent  with  the  deed,  as  in  case  of  an  absolute  unconditional 
sale,  where  the  possession  does  not  "accompany  and  follow 
the  deed."  Here  the  vendor's  possession  is  not  merely  evi- 
dence of  fraud,  but,  by  legal  inference,  is  a  fraud  per  se,  and 
can  not  be  rebutted  by  testimony  of  fair  intention;  because 
the  possession  not  remaining  with  the  person  shown  by  the 
deed  to  l>e  entitled  to  it,  works  deception  and  injury.  But 
where,  from  the  nature  and  provisions  of  the  conveyance,  the 
possession  is  to  remain  with  the  vendor,  and  the  transaction  is 
oonafde,  its  so  remaining  is  consistent  with  the  deed,  and 
does  not  avoid  it. 

The  application  of  these  principles  to  the  present  case  will 
clearly  establish  the  validity  of  Thornton's  title  to  the  prop- 
erty in  controversy.  The  conveyance  from  Wilhite  was  a 
mortgage,  the  legitimate  object  of  which  was  to  secure  to  a 
creditor  a  just  debt ;  and  it  was  expressly  stipulated 
in  the  deed  that  Wilhite  *should  retain  possession  of 
the  mortgaged  property  until  the  debt  became  due. 
Had  not  the  deed  contained  this  authority  for  his  possession, 
there  is  no  doubt  but  his  retaining  it,  would  have  constituted  a 
i 


DECEMBER  TERM,  1836,  299 

Thornton  v.  Davenport  et  al. 

legal  fraud.  Such  too  would  have  been  the  effect  of  his  re- 
maining in  possession,  if  the  deed  to  Thornton  had  been  an 
absolute,  in  place  of  a  conditional  one,  though  authorized 
by  its  terms.  In  the  first  case  his  possession  would  not  be  au- 
thorized by  the  deed  ;  and  in  the  other,  it  would  be  inconsist- 
ent with  its  character,  and  therefore  void.  Neither  of  these  ob- 
jections, however,  apply  in  this  case.  Wilhite's  possession  of 
the  property  is  consistent  with  the  object  and  intent  of  the 
deed,  and  is  warranted  as  well  by  its  stipulations  as  by  its  usu- 
al and  legal  operations ;  for  it  is  of  the  nature  of  a  security 
that  the  debtor  should  retain  possession  until  the  day  of  pay- 
ment be  past. 

Among  the  numerous  authorities  from  which  these  princi- 
ples are  deduced,  there  are  several  cases  directly  analogous  to 
the  present,  such  as  the  case  of  Cadoyan  v.  Kennet,  (Cowper, 
432,)  where  by  settlement  before  marriage  the  husband  con- 
veyed all  his  household  goods  to  trustees  to  the  use  of  himself 
for  life,  with  remainder  over,  and  with  a  proviso  that  he 
should  retain  possession  and  enjoy  the  property  ;  his  doing  so, 
the  Court  said,  being  consistent  with  the  object,  intent,  and 
provisions  of  the  deed  did  not  render  it  void.  Such,  too,  was 
the  decision  in  the  case  of  Cluybourrfs  Executors  v.  IJill, 
(1  Wash.  177,)  which  was  the  case  of  a  mortgage  of  personal 
property,  with  an  express  stipulation  that  the  debtor  should 
retain  possession.  The  only  deduction  from  these  and  numer- 
ous similar  cases  is,  that  mortgages,  marriage  settlements,  and 
limitations  over  of  chattels  are  valid  against  all  persons  without 
delivery  of  possession,  provided  the  transfer  be  bonajide,  and 
the  possession  remain  with  the  person  shown  by  the  stipula- 
tions of  the  deed  to  be  entitled  to  it.  Were  a  different  rule 
to  prevail,  one  which  would  not  under  any  circumstances  sanc- 
tion the  separation  of  the  title  to  personal  property  from  the 
possession,  it  would,  in  many  cases,  render  the  transfer  of  per- 
sonal property  to  suit  the  convenience  of  parties  extremely 
inconvenient,  and,  in  some  cases,  impossible ;  as  where  from 
the  situation  of  the  property  at  the  time  it  was  incapable  of 
delivery,  as  in  the  case  of  a  sale  of  a  ship  at  sea,  or  the  limit- 
ation over  of  chattels  after  the  use  of  them  for  life  or  for 
years,  to  another.  I  admit  that  there  are  some  authorities 
which  seem  to  militate  against,  and  others  that  are  less  equiv- 
ocally opposed  to  the  rule  here  laid  down,  which  permits  the 
possession  of  personal  property  in  cases  like  the  present  to  be 
separated  from  the  title.  But  I  think  the  principle  so  well 
established  by  an  overwhelming  current  of  authorities  that 
no  arguments  drawn  from  policy  will  justify  the  Court  in  de- 
parting from  it. 

VOL.  I.-20  805 


,  YANDALIA. 

Thornton  v .  Davenport  et  al. 

[*300]         *The  judgment  of  the  Circuit  Court  is  therefore 
reversed  with  costs. 

Judgment  reversed. 

LOCKWOOD,  Justice,  dissenting : 

I  can  not  concur  in  the  opinion  of  the  Court,  because  I  be- 
lieve that  where  the  motive  for  the  sale  or  mortgage  is  the 
security  of  the  vendee  or  mortgagee,  and  the  vendor  or  mort- 
gagor is  permitted  to  retain  the  possession  and  visible  owner- 
ship for  the  convenience  of  the  parties,  it  is  a  fraud,  though  the 
arrangement  be  inserted  in  the  deed  or  mortgage.  The  policy 
of  the  law  will  not  permit  the  owner  of  personal  property  to 
create  an  interest  in  another,  either  by  mortgage  or  absolute 
sale,  and  still  continue  to  be  the  visible  owner.  The  law  will 
not  stay  to  inquire  whether  there  was  actual  fraud  or  not ;  it 
will  infer  it  at  all  events,  for  it  is  against  sound  policy  to  suf- 
fer the  vendor  or  mortgagor  to  remain  in  possession,  whether 
an  agreement  to  that  effect  be  or  be  not  expressed  in  the  deed. 
It  necessarily  creates  a  secret  incumbrance  as  to  personal  prop- 
erty, when  to  the  world  the  vendor  or  mortgagor  appears  to 
be  the  owner,  and  he  gains  credit  as  such,  and  is  thereby  en- 
abled to  practice  deceit  upon  mankind.  If  the  possession  be 
withheld  pursuant  to  the  terms  of  the  agreement,  some  good  rea- 
son for  it,  beyond  the  convenience  of  the  parties,  must  appear, 
and  the  parties  must  leave  nothing  unperformed  within  their 
power  to  secure  third  persons  from  the  consequences  of  the 
apparent  ownership  of  the  vendor  or  mortgagor.  In  support 
of  my  views  on  this  subject  I  have  used  the  language  of 
Chancellor  Kent,  commenting  on  the  case  of  Clow  v.  Woods 
(5  Serg.  &  Rawle,  277).  In  that  case  the  Supreme  Court  of 
Pennsylvania  decided  that  the  delivery  of  the  goods  is  held  to 
be  as  requisite  in  the  case  of  a  mortgage  of  goods  as  in  the 
case  of  an  absolute  sale  under  the  statute  13  and  27  Elizabeth, 
and  that  merely  stating  on  the  face  of  the  deed  that  possession 
was  to  be  retained,  is  not  sufficient  to  take  the  case  out  of  the 
statute  even  in  the  case  of  a  mortgage  of  goods. 

306 


DECEMBER  TERM,  1836.  300 

Kitchell  v.  Bratton.j 


JOSEPH   KITCHELL,   appellant,  v.  SAMUEL   BRATTON, 

appellee. 

Appeal  from  Crawford. 

STATUTE  OF  FRAUDS — POSSESSION — DEED — CONSIDERATION. — The  sec- 
tion of  the  statute  of  frauds  and  perjuries  which  declares  void  as  to  creditors 
and  purchasers,  all  conveyances  of  goods  and  chattels  made  upon  considera- 
tions not  deemed  valuable  in  law,  unless  possession  shall  remain  with 
*the  donee,  or  unless  the  conveyances  be  recorded,  has  no  relation  to     [*301] 
a  deed  made  upon  a  valuable  consideration.     The  statute  applies  to 
deeds  for  personal  property  made  upon  good  consideration  only,  as  distin- 
guished from  valuable. 

ERROR. — A  party  can  not  assign  for  error  an  erroneous  instruction  favor- 
able to  him. 

SALE — POSSESSION — FRAUD. — The  rule  governing  conveyances  of  per- 
sonal property  is,  that  unless  possession  shall  accompany  and  follow  the 
deed,  the  conveyance  by  legal  inference  is  fraudulent  and  void  as  to  cred- 
itors. 

INSTRUCTION — BILL  OF  EXCEPTIONS. — Where  an  erroneous  instruction  is 
given  to  the  jury,  but  the  bill  of  exceptions  does  not  enable  the  Court  to  see 
what  effect  it  probably  had  upon  their  verdict,  the  judgment  of  the  Court 
below  will  be  reversed.  The  bill  of  exceptions  should  have  stated  the  proof 
upon  the  point. 

THIS  was  an  appeal  from  the  verdict  of  a  justice's  jury  upon 
the  trial  of  the  right  of  property  in  certain  goods  and  chattels 
claimed  by  the  appellant  as  mortgagee,  which  had  been  levied 
on  by  virtue  of  an  execution  in  favor  of  the  appellee. 

The  cause  was  tried  at  the  March  term,  1836,  of  the  Craw- 
ford Circuit  Court,  before  the  Hon.  Justin  Harlan  and  a  jury, 
and  a  verdict  and  judgment  rendered  against  the  appellant, 
from  which  he  appealed  to  this  Court. 

E.  S.  JANNEY.  for  the  appellant,  relied  upon  the  following 
points  and  authorities. 

Contracts,  where  a  fair  and  valuable  consideration  has  been 
paid,  are  not  affected  by  the  statute  of  frauds.  R.  L.  313-14 
(Gale's  Stat.  315-16) ;  2  Hen.  and  Munf.  302.  Possession  was 
not  necessary  under  the  mortgage — possession  being  necessary 
only  in  caees  of  absolute  bills  of  sale  or  deeds.  Ham  v.  Russell 
1  Cranch,  309  ;  same  case,  1  Peters'  Cond.  Rep.  318  ;  U.  S. 
v.  Hove  et  al.  1  Peters,  458  ;  1  Fonb.  Eq.  270,  274. 

That  every  debtor  has  a  right  to  secure  his  creditor.  1 
lr*eters,  3-18,  in  notes. 

CITED:  3  Gilm.  81;  14  111.  389;  17  111.  81;  19  111.  596;  84  111.  474;  100 
111.  454. 
See  ante  296,  note. 

307 


301  Y  AND  ALIA. 


Kitchell  v.  Bratton. 


So  that  even  in  cases  of  absolute  bills  of  sale,  if  a  valuable 
and  adequate  consideration  has  been  given,  possession  is  not 
deemed  requisite  unless  there  is  an  intention  to  defraud, 
Ham  v.  Russell,  I  Peters,  320. 

Recording  of  bills  of  sale  or  mortgages  of  personalty,  is 
not  requisite,  especially  where  the  consideration  is  valuable  ; 
nor  is  it  required  at  all  of  conveyances  of  personalty.  E.  L. 
314  ;  JL>J<j$i>n  v.  Butts,  1  Peters,  476. 

That  even  in  cases  of  loans,  recording  only  is  necessary  after 
a  lapse  of  five  years.  Last  clause  §  2  St.  Frauds;  R.  L.  314. 

WALTER  B.  SCATES  and  A.  P.  FIELD,  for  the  appellee. 

An  absolute  bill  of  sale  is  fraudulent,  if  possession  remain 
with  the  vendor.  1  Cranch,  309;  2  Munf.  341 ;  3  Munf.  1. 

A  conditional  bill  of  sale,  or  a  mortgage,  where  possession 
remains  with  the  vendor  or  mortgagor,  unless  it  be  shown  upon 
its  face  to  be  consistent  with  a  fair  and  honest  intent, 
[*302]  and  the  ^circumstances  of  the  transaction  is  fraudu- 
lent. 2  Kent's  Com.  410,  419,  and  the  authorities 
there  referred  to.  See  also  generally  upon  the  same  doctrine, 
the  same,  and  Espinasse  N.  P.,  540-1,  566-7-8 ;  Tidd,  Pr. 
919  ;  Robt.  on  Fraud,  Con.  544,  570 ;  2  Cowp.  434. 

To  make  a  bill  of  sale  or  mortgage  good  under  the  statute, 
it  must  be  proved  by  two  witnesses,  before  some  court  of 
record,  within  eight  months.  R.  L.  313-14,  §  2  QGale's  Stat. 
315-16). 

"WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
In  this  case  the  question  in  the  Court  below  was  relative  to 
the  ownership  of  certain  articles  of  personal  property  which 
were  levied  on  as  the  property  of  J.  and  P.  Higgins,  but 
which  were  claimed  by  J.  Kitchell,  who  produced  and 
gave  in  evidence  a  deed  of  mortgage  from  the  Higgins  to 
himself,  of  the  property  levied  on.  The  consideration  of  the 
deed,  as  appears  from  its  face,  was  a  debt  due  from  the  Hig- 
gins to  Kitchell.  By  the  stipulations  of  the  deed,  Kitchell 
was  to  have  immediate  possession  of  the  property,  but  he  was 
bound  to  relinquish  all  title  thereto  upon  the  payment  of  his 
debt.  Upon  the  trial  in  the  Circuit  Court,  the  counsel  for  the 
appellant,  Kitchell,  moved  the  Court  to  instruct  the  jury  that 
it  they  believed  the  mortgage  was  made  upon  consideration 
deemed  valuable  in  law,  that  then  it  was  not  necessary  to 
record  it.  This  instruction  the  Court  refused  to  give ;  but 
instructed  the  jury  that  unless  they  were  satisfied  from  tho 
evidence,  that  the  appellant  had  had,  and  bona  Jide  remained 
in  possession  of  the  property,  that  then  the  mortgage  was 
void,  unless  recorded  within  eight  months. 

30* 


DECEMBEE  TEEM,  1836.  302 

Kitchell  v.  'Bratton. 

To  these  instructions  the  appellant,  Kitchell,  by  his  counsel, 
excepted  and  assigns  for  error.  1st,  the  refusal  of  the  Court 
to  give  the  instructions  asked  for ;  and  2d,  the  giving  the 
instructions  which  the  Court  gave.  From  the  instructions 
i  asked  for  and  refused,  as  well  as  those  given,  it  would  seem 
that  the  Court  considered  the  conveyance  as  coming  within 
the  provisions  of  that  branch  of  the  statute  of  frauds  and 
perjuries  which  renders  void,  as  to  creditors,  all  -deeds  made 
upon  consideration  not  deemed  valuable  in  law,  unless  posses- 
sion shall  remain  with  the  donee,  or  un'ess  recorded.  This 
view  of  the  case  is  clearly  erroneous.  The  deed  to  Kitchell 
is  upon  consideration  deemed  valuable  in  law,  and  therefore 
excluded  from  the  operation  of  that  branch  of  the  statute 
which  authorizes  recording.  The  statute  applies  to  deeds 
for  personal  property,  made  upon  good  consideration  only, 
as  distinguished  from  valuable,  and  with  respect  to  them, 
substitutes  possession  for  recording.  In  the  instructions  given 
by  the  Court,  there  was  no  error,  except  in  that  branch  of  it 
which  recognized  the  alternative  of  recording  as 
equivalent  to  "^possession  in  the  mortgagee,  for  the  [*303] 
purpose  of  giving  validity  to  the  deed.  This  is  not 
the  law ;  but  inasmuch  as  it  was  an  error  favorable  to  the 
appellant,  by  making,  valid  his  mortgage  by  either  possession 
or  recording,  he  has  no  ground  of  complaint.  The  refusal, 
however,  of  the  Court  to  give  the  instructions  asked  for  was 
clearly  erroneous.  But  what  would  have  been  the  effect  of 
those  instructions,  and  whether,  if  given,  a  different  result 
would  have  been  produced,  depends  upon  a  fact  which  is  not 
disclosed  by  any  part  of  the  record  ;  that  is,  whether  the 
possession  of  the  property  remained  with  the  mortgagors,  or 
whether  it  passed  according  to  the  terms  of  the  deed,  to  the 
mortgagee,  and  was  by  him  retained.  If  the  fact  was  that  the 
mortgagee  took  and  retained  possession  of  the  property,  then 
the  instructions  asked  for,  had  they  been  given,  would  have 
entitled  him  to  a  verdict,  and  were  therefore  material.  But 
if  the  ]X>ssession  did  not  continue  with  him,  the  deed  was  by 
legal  inference  fraudulent  and  void,  and  the  instructions  could 
not  have  availed  him.  The  rule  governing  conveyances 
of  personal  property,  as  laid  down  in  the  case  of  Tfiornton 
v.  Davenport  and  Henderson,  (ante  296,)  decided  at  this  term 
of  the  Court,  is  that  "Unless  possession  shall  accompany  and 
follow  the  deed,"  it  is  by  legal  inference  fraudulent  and  void 
as  to  creditors.  If  then,  from  the  evidence  in  this  case,  it  ap- 
peared that  possession  was  taken  and  retained  by  Kitchell,  and 
the  transaction  was  otherwise  fair,  his  title  to  the  property 
was  valid.  But  if,  on  the  other  hand,  the  property  remained 

309 


VANDAL!  A. 

Baldwin  r.  The  People. 

in  the  possession  of  the  Higgins,  its  so  remaining  rendered  the 
conveyance  fraudulent  per  se,  because  inconsistent  with  the 
stipulations  of  the  deed  which  gave  the  possession  to  Kitchell 
until  the  debt  was  paid. 

The  bill  of  exceptions  should  have  stated  the  proof  upon 
this  ]H>int,  but  as  it  has  not  done  so,  the  case  is  too  imperfectly 
presented  to  enable  this  Court  to  say  what  should  have  been 
the  decision  below,  or  give  such  judgment  here,  as  that  Court 
ought  to  have  given.  The  decision  of  the  Circuit  Court  is 
therefore  reversed,  the  cause  remanded,  and  a  new  trial 
awarded,  conformably  to  this  opinion.  The  costs  of  this  Court 
to  be  paid  by  the  appellee. 

Judgment  reversed. 


[*304]  *GEOKGE  BALDWIN,  plaintiff  in  error,  v.  THE 
PEOPLE  OF  THE  STATE  OF  ILLINOIS,  defend- 
ants in  error. 

Error  to  Cook. 

INDICTMENT — EVIBENCE. — Proof  that  defendant  stole  a  mare  or  a  geld- 
inp  will  s\istain  an  indictment  for  stealing  a  horse. 

An  indictment  alleging  that  the  animal  was  stolen  and  carried  away 
will  be  sustained  by  proof  that  it  was  ridden,  driven  or  led  away. 

THIS  cause  was  tried  before  the  Hon.  Thomas  Ford  and  a 
jury.  The  defendant  in  the  Court  below  was  found  guilty, 
and  sentenced  to  the  penitentiary  for  five  years. 

J.  D.  CATON,  for  the  plaintiff  in  error. 

JAMKS  GRANT,  State's  Attorney,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
The  plaintiff  in  error  was  indicted  aud  convicted  of  larceny, 
at  the  October  term  of  the  Cook  Circuit  Court,  1836.  The 
indictment  charged  him  with  feloniously  stealing  and  carrying 
away  one  horse,  the  proper  goods  and  chattels  of  one  Aslibel 
Steele.  On  the  trial,  the  prisoner's  counsel  asked  the  Court 
to  instruct  the  jury,  "  That  if  they  believed  from  the  evidence 
that  the  property  stolen  was  a  gelding  or  a  mare,  that  in  point 
of  law  the  indictment  was  not  sustained,"  which  the  Court 
refused  to  do.  This  is  alleged  for  error.  There  can  be  no 
doubt  that  the  refusal  was  proper.  The  term  horse,  used  in 
a;o 


DECEMBER  TERM,  1836.  304 

Prevo  v.  Lathrop. 

the  indictment,  is  descriptive  of  the  genus  of  the  animal,  and 
not  of  the  sex  or  character  changed  by  artificial  msans.  The 
animal  was  still  a  "horse,"  no  matter  what  the  sex,  and  so  was 
it  still  a  horse,  although  it  might  he  a  gelding.  The  second 
ground  of  objection  raised,  that  the  Court  refused  to  instruct 
the  jury  "  That  if  they  believed  the  animal  was  ridden,  driven, 
or  led  away,  the  proof  did  .not  sustain  the  indictment,"  i# 
without  reason  to  sustain  it,  and  can  not  be  entitled  to  con- 
sideration. It  can  not  be  expected  that  the  proof  is  to  corre- 
spond with  the  literal  interpretation  of  the  words,  and  that  the 
party,  because  he  did  not  literally  carry  away  the  animal  is 
not  guilty. 

The  judgment  of  the  Circuit  Court  of  Cook  county  is 
hereby  affirmed,  and  the  said  Court  are  directed  to  cause 
the  execution  of  the  judgment  and  sentence  of  the  said  Court 
to  be  carried  into  effect  without  delay.  The  defendants 
in  error  are  also  to  recover  costs  in  this  Court  attending 
the  prosecution  of  the  writ  of  error,  and  have  execution  there- 
fore. 

Judgment  affirmed. 


,  administrator  of  Rezin  Beall,     [*305] 
deceased,    appellant,   v.   SIMO^    LATHROP, 
appellee. 

Appeal  from  Clark. 

STATUTE  OF  FRAUDS — INTEREST — CONTRACT. — Where  B.  agreed,  by  pa- 
rol,  to  purchase  of  L.  a  tract  of  land,  and  to  pay  $400  for  the  same,  in  four 
equal  annual  installments,  but  no  memorandum  in  writing  was  made  of  (he 
bargain,  and  some  time  afterward  a  note  was  executed  for  the  amount  then 
due  of  the  principal  of  said  purchase  money,  and  a  deed  made_for  the  land, 
but  the  parties  not  agreeing  as  to  the  rate  of  interest  for  the  time  payment 
had  been  delayed,  that  was  left  for  future  adjustment:  Held  that  the  con- 
tract to  pay  interest  was  not  within  the  statute  of  frauds.  Said  agreement 
to  purchase  the  land  was  made  in  1824,  and  the  note  was  executed  in  1832. 
The  suit  was  instituted  in  1835:  Held,  also,  that  the  contract  for  interest 
was  not  barred  by  the  statute  of  limitations. 

Where  no  specific  agreement  is  entered  into  in  relation  to  the  rate  of  in- 
terest, the  law  will  presume  that  the  legal  rate  was  intended. 

THIS  cause  was  commenced  before  the  Judge  of  Probate  of 
C'ark  county,  on  the  21st  day  of  April,  1835.  It  washeard  in 
the  Circuit  Court,  at  the  May  term,  1836,  before  the  Hon. 
Justin  Harlan. 

H.  EDDY  and  D.  J.  BAKER,  for  the  appellant. 

811 


305  VANDALIA. 


Prevo  v.  Lathrop. 


J.  PEARSON,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

Lathrop  sued  Prevo  as  administrator  of  Beall,  before  the 
Court  of  Probate,  on  a  note  and  an  account.  The  suit  was 
amicable,  and  the  parties  waived  service  of  process.  The 
Court  of  Probate  rendered  judgment  against  Prevo  for  $148 
and  costs  of  suit.  Prevo  appealed  from  this  judgment  to  the 
Circuit  Court,  and  filed  his  bill  of  exceptions  agreeably  to  the 
statute.  On  the  trial  in  the  Circuit  Court,  a  judgment  was 
rendered  in  favor  of  Lathrop  against  Prevo,  for  $157  and  costs. 
In  the  progress  of  the  trial  in  the  Circuit  Court,  a  bill  of  ex- 
ceptions w«is  taken  to  the  opinion  of  the  Circuit  Court,  for  ad- 
mitting, and  not  excluding,  the  testimony  of  a  witness,  who 
deposed  that  some  time  in  the  year  1823  or  1824,  there  was  a 
verbal  contract  entered  into  between  the  plaintiff  and  the  de- 
fendant's intestate,  Ilezin  Beall,  deceased,  in  relation  to  a  cer- 
tain tract  or  parcel  of  land  situate  in  Clark  county,  for  which 
said  Beall  was  to  pay  said  plaintiff  $400  in  four  equal  annual 
installments;  for  the  payment  of  which  no  writing  was  en- 
tered into  until  the  execution  of  the  note  offered  in  evidence, 
at  which  time  a  deed  of  conveyance  was  made  by  Lathrop  to 
Beall ;  that,  at  the  time  of  the  execution  of  said  note,  a  claim 
was  set  up  by  said  plaintiff,  for  twelve  per  cent,  interest  on  the 
said  installments,  from  the  time  they  became  due,  up  to  the 
time  of  the  execution  of  the  note.  Whereupon  a  con- 
[*306]  troversy  arose  *between  the  plaintiff  and  Beall,  the 
intestate,  in  relation  to  the  interest.  The  plaintiff 
claimed  twelve  per  cent,  and  Beall  was  walling  to  give  six  per 
cent,  or  more ;  but  as  they  could  not  agree  at  the  time,  they 
agreed  to  leave  it  to  future  adjustment,  as  to  the  rate  of  inter- 
est to  be  paid.  The  note  was  executed  for  the  sum  therein 
mentioned,  Beall  refusing  to  include  twelve  per  cent,  interest 
in  the  note,  and  remarked,  at  the  time,  that  he,  the  plaintiff, 
and  Beall  would  not  fall  out  about  the  amount  of  interest. 

On  this  testimony,  the  counsel  of  the  appellant  raised  in  the 
Court  below  the  following  objections: 

.  That  the  claim  for  interest,  arising  under  the  agreement 
and  promise  to  pay  interest,  and  leaving  the  precise  amount  to 
future  adjustment,  was  barred  by  the  statute  of  limitations. 

,  That  the  conversations  between  the  parties  were  not  evi- 
dence, because  the  contract  upon  which  interest  was  claimed 
was  a  verbal  one  for  the  sale  of  lands,  and  void  under  the 
statute  of  frauds  and  perjuries. 

The  same  points  are  now  made  in  this  Court,  and  relied  on 
fora  reversal  of  the  judgment  of  the  Circuit  Court. 
.  :• 


DECEMBER  TERM,  1836.  306 

Vickers  v.  Hill  et  al. 

To  ascertain  whether  the  statute  of  limitations  was  a  bar 
in  the  present  case,  we  must  recur  to  the  time  of  the  promise 
to  adjust  the  interest  at  some  future  day.  That  was  the  day  of 
the  execution  of  the  note,  the  26th  of  August,  1832;  conse- 
quently, five  years  had  not  elapsed  from  the  making  of  the 
promise,  at  the  institution  of  the  suit. 

On  the  2d  point,  it  is  a  misapprehension  of  the  state  of  facts 
disclosed,  to  suppose  that  the  promise  to  pay  the  interest  was 
an  agreement  within  the  terms  of  the  statute  of  frauds.  It 
was  a  mere  incident  connected  with  the  sum  of  money  agreed 
to  be  paid  on  the  consummation  of  the  contract  for  the  lands, 
by  the  making  of  the  conveyance  and  note  ;  though  the  exact 
amount  of  money  to  be  paid  as  interest  was  left  to  future  ad- 
justment between  the  parties.  That  amount  not  having  been 
agreed  upon  between  them,  it  is  fair  to  presume,  at  least,  that 
the  amount  should  be  the  legal  interest,  and  the  party  himself 
admitted  his  willingness  to  pay  at  least  that  sum. 

Upon  the  testimony,  then,  as  well  as  the  legal  questions  aris- 
ing thereon,  no  error  is  perceived  in  the  judgment  of  the  Cir- 
cuit Court ;  and  it  is  accordingly  affirmed  with  costs. 

Judgment  affirmed. 
Note.    See  Scott  v.  Thomas,  ante  58. 


*THOMAS  VICKERS,  plaintiff  in  error,  v.  JANE     [*307] 
HILL,  administratrix,  and  JOHN  M    WEB- 
STER, administrator  of  the  estate  of  Curtis 
Hill,  deceased,  defendants  in  error. 

Error  to  Marion. 

PUACT>CE — CONTINUANCE — DISCKETION — Ennrm. — The  granting1  and 
refusing  of  continuances  is  a  matter  of  sound  legal  discretion,  resting  en- 
tirely with  the  Circuit  Court;  and  that  Court  is  to  judge  whether  the  party 
applying  for  a  continuance  has  complied  with  the  -equisitions  of  the  statute; 
and  the  decision  of  the  Court  in  such  cases  car  not  be  Assigned  for  error. 

SAME — EXCEPTION. — If  an  exception  exist  to  this  general  rule,  that  ex- 
ception is  to  be  confined  to  the  simple  point  of  the  materiality  of  the  facts 
renting  within  the  knowledge  of  the  witness,  and  then  tendency  to  prove 
the  point  directly  in  issue. 

WITNESSES. — Where  the  affidavit  shows  that  only  a  part  of  the  witnesses 
have  been  legally  summoned,  the  plaintiffs  may  admit  the  fa«.tsto  be  proved 
by  the  witnesses  legally  summoned,  as  set  forth  in  the  affidavit,  and  compel 
the  defendant  to  go  to  trial. 

CITED:  Continuance  discretionary.  4  Scam.  312;  3  Gil.  372.  What  can 
not  be  assignH  for  error,  3  Id.  663. 

813 


307  VANDALIA. 


Vickors  v.  Hill  et  al. 


THE  proceedings  were  had  in  this  cause  at  the  March  term, 
iS'Ui,  of  the  Marion  Circuit  Court,  before  the  Hon.  Jepthah 
Ilardin  and  a  jury.  Verdict  and  judgment  were  rendered  for 
the  defendants  in  error,  for  $13.84  and  costs  of  suit. 

The  following  bill  of  exceptions  was  taken  in  the  Court  be- 
low : 

"Charles  Coker  being  first  duly  sworn,  deposes  and  says, 
that  he  is  agent  for  the  defendant  in  the  above  cause,  and  that 
,  the  defendant  can  not  go  safely  to  trial  at  this  term  of  the 
Court,  for  want  of  the  evidence  of  Thomas  Cottiiigham,  An- 
drew Story,  Jeremiah  Lewis  and  Eli  Tickers,  witnesses  for  said 
defendant.  Said  witnesses  reside  in  Hamilton  county  in  this 
State.  A  subpoma  was  duly  issued  and  put  into  the  hands  of 
the  sheriff  of  Hamilton  county,  and  is  returned  by  him  served 
on  Cottingham,  the  rest  not  found.  He  expects  the  defend- 
ant will  prove  by  said  Cottingham  that  the  note  sued  on  was 
given  by  defendant  for  clocks,  and  that  the  clocks  were  war- 
ranted to  be  good  time-pieces  for  two  years ;  and  he  expects  to 
prove  by  the  other  witnesses  that  said  clocks  were  not  good 
time-pieces,  and  that  they  did  not  keep  time,  and  that  the  war- 
ranty wholly  failed.  He  does  not  know  that  he  can  prove  the 
same  facts  by  any  other  witness  or  witnesses.  Neither  of 
said  witnesses  are  in  attendance.  This  affidavit  is  not  made 
for  delay,  but  that  justice  may  be  done.  He  believes  the  de- 
fendant can  not  go  safely  to  trial  without  said  witnesses,  and 
he  expects  to  be  able  to  procure  their  attendance  by  the  next 
term  of  this  Court.  All  of  which  is  stated  to  the  best  of  this 
deponent's  knowledge  and  belief. 

CHARLES  COKER. 

Subscribed  and  sworn  to  this  14th  day  of  March,  1836. 

WM.  W.  PACE,  Clerk. 

*And  thereupon  the  defendant  moved  the  Court  for 
a  continuance  of  this  cause  until  the  next  term  of  this 
Court,  and  uponargument  heard,  the  Court  decided  that  the  affi- 
davit was  sufficient  as  to  the  causes  and  facts  expected  to  be  proved 
by  the  other  witnesses,  except  Thomas  Cottingham, but  no  de- 
linquence  is  shown  as  to  Cottingham,  because  his  fees  were 
not  tendered,  and  ordered  a  continuance  of  the  cause  unless 
the  plaintiffs  admit  the  fact  stated  in  the  affidavit  which  the 
defendant  expects  to  prove  by  Eli  Vickers,  Andrew  Story  and 
Jeremiah  Lewis,  without  admitting  the  facts  which  he  expects 

prove  by  Thomas  Cottingham,  which  the  p'aintiffs  admitted 

went  to  trial,  and  upon  the  trial  the  Court  rejected  and 

excluded  all  the  facts  in  the  affidavit  and  all   that  part  of  the 

t  which  related  to  the  facts  which  the  defendant  stated 

itlidavit  he  expected  to  prove  by  said  Cottingham,  and 


DECEMBER  TERM,  1836.  308 

Vickers  v.  Hill  et  al. 

directed  the  jury  not  to  regard  the  same  in  making  up  their 
verdict.  The  note  sued  on,  and  the  letters  of  administration 
were  read  in  evidence,  which  was  all  the  evidence  in  the  cause 
with  those  facts  which  the  Court  permitted  to  go  to  the  jury 
in  the  affidavit.  To  which  opinion  ot  the  Court  in  not  re- 
quiring the  plaintiffs  to  admit  said  facts,  and  in  excluding  said 
facts  from  the  jury,  the  defendant  excepts,  and  prays  this  his 
bill  of  exceptions  may  be  signed,  sealed  and  made  a  part  of  the 
record. 

JEPTHAH  HAKDIN." 

WALTEE  B.  SCATES,  for  the  plaintiff  in  error. 
H.  EDDY,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  appeal  from  a  judgment  of  a  justice  of  the 
peace,  to  the  Circuit  Court  of  Marion.  Two  questions  are 
presented  for  the  consideration  of  this  Court. 

It  is  alleged  for  error,  first,  that  the  Circuit  Court  refused 
to  continue  the  cause  upon  the  application  of  Tickers,  on  an 
affidavit  made  by  his  agent  as  to  the  materiality  of  the  facts 
within  the  knowledge  of  the  absent  witnesses,  because  he  had 
not  used  due  diligence  in  obtaining  the  attendance  of  a  witness, 
he  having  omitted  to  tender  the  witness,  who  lived  in  a  for- 
eign county,  his  fees  for  attendance;  secondly,  because  the 
Court  compelled  the  plaintiff  in  error  to  go  to  'trial  in  the  Cir- 
cuit Court,  on  the  plaintiffs  admitting  the  facts,  expected  to 
be  proved  by  the  other  witnesses,  conformably  to  the  provis- 
ions of  the  practice  act  in  relation  to  continuances. 

On  the  first  point  it  is  clear,  that  the  granting  and  refusing 
continuances  of  causes  is  a  matter  of  sound  legal  discretion, 
resting  entirely  within  the  exercise  of  that  discretion  by  the  Court 
under  the  provisions  of  the  statute ;  and  it  is  to  judge  whether 
or  not  the  party  applying  for  the  continuance  has 
*complied  with  the  requisitions  of  the  statute.  So  far  [*309] 
as  an  intimation  may  have  been  given  in  the  case  of 
Cornelius  \.  Boucher  (Breese,  12,)  decided  in  this  Court  at  its  De- 
cember term,  1820,  that  an  exception  might  exist  to  the  general 
rule,  that  exception  is  to  be  confined  to  the  simple  point  of  ma- 
teriality of  the  facts  resting  in  the  knowledge  of  the  witne?s,  and 
their  tendency  to  prove  the  point  directly  in  issue.  Should 
the  Circuit  Court  decide  erroneously  in  such  a  case,  it  would 
be  considered  a  decision  of  a  legal  question,  and  to  which  an 
exception  might  be  taken,  and  consequently  would  be  a  ground 
of  error.  I  am  not  aware  of  any  possible  case  other  than  this 

315 


8;,9  VANDALIA. 


Buckmaster  r.  Grundy. 


one  which  would  not  involve  the  exercise  of  legal  discretion 
in  the  Court  in  determining  whether  the  applicant  had  com- 
plied with  the  requisitions  of  the  practice  act. 

On  the  other  ground  of  admitting  a  portion  of  the  affidavit 
as  evidence,  and  excluding  that  part  relating  to  the  facts 
which  the  witness  might  prove,  to  procure  whose  attendance 
due  diligence  was  decided  not  to  have  been  exercised,  it  is  not 
perceived  that  there  was  any  inaccuracy  of  decision ;  as  the 
plaintiffs  in  the  Court  below  chose  to  admit  all  the  statements 
contained  in  the  defendant's  deposition,  as  to  the  facts  expect- 
ed to  be  established  by  the  other  absent  witnesses,  and  as 
that  part  of  the  statement  of  facts  resting  in  the  knowledge  of 
the  absent  witnesses,  who  had  not  been  sufficiently  summoned 
was  not  deemed  sufficient  cause  for  a  continuance,  the  Court 
very  properly  directed  the  jury  to  disregard  that  portion  of 
the  defendant's  statement  which  had  not  been  made  evidence 
in  the  cause. 

Judgment  is  affirmed  with  costs.* 

Judgment  affirmed. 

Note.  Where  a  statute  declares  that  in  a  certain  case  a  continuance  shall 
be  granted,  it  is  error  in  the  court  to  refuse  it.  Rountree  v.  Stuart, 
Breese.  43. 

Since  the  decision  of  the  above  case,  the  following  section  has  become  a 
law: 

Exceptions  taken  to  opinions  or  decisions  of  the  Circuit  Court,  overruling 
motions  in  arrest  of  judgment,  motions  for  new  trials,  and  for  continuances 
of  causes,  shall  hereafter  be  allowed;  and  the  party  excepting  may  assign 
for  error  any  opinion  so  excepted  to,  any  usage  to  the  contrary  notwith- 
standing. 

Acts  of  July,  1837,  109;  Gale's  Stat.  540. 


[*310]     *NATHANIEL  BUCKMASTER,  plaintiff  in  error, 
v.  WILLIAM  GRUNDY,  defendant  in  error. 

Error  to  Johnson. 

PRACTICE — PLEADING — WAIVER  OP  DEMURRER. — Upon  the  overruling 
of  a  demurrer  to  a  declaration,  if  the  defendant  reply_  he  thereby  waives  his 
demurrer. 

A  demurrer  to  a-  plea  extends  back  to  the  declaration,  and  brings  both 
under  review  before  the  court. 

COVENANT— CONSIDERATION.— In  an  action  of  covenant  for  a  failure  to 
IT  lands,  it  is  not  necessary  to  aver  or  prove  a  consideration. 

A  seal  imports  a  consideration. 

•  S««e  L.  of  18f57  p.  157,  in  civil  cases. 

CITED:  Deed,>ho  is  bound  to  prepare.    52  111.  122;  64  Id.  486:  68  Id.  71. 
Demurrer  waived  by  plea.    20  Id.  515;  29  Id.  405;  3  Scam.  49.    Measure  of 
tfw  upon  failure  to  convey.     78   111.  224;  12  Id.  193. 

aa 


DECEMBER  TERM,  1836.  310 

Buckmaster  v.  Grundy. 

Semble,  That  a  want  of  consideration  may  be  pleaded  to  an  action  upon 
a  bond  for  the  conveyance  of  lands. 

SAME — MEASURE  OK  DAMAGES. — In  an  action  of  covenant  for  failing  to 
convey  lands  agreeably  to  contract,  the  value  of  the  lands  at  the  time  they 
were  to  have  been  conveyed  is  the  true  measure  of  damages. 

TENDER  OF  DEED. — Whatever  may  be  the  practice  in  England,  the  pur- 
chaser here  is  not  bound  to  prepare  and  tender  a  deed  to  the  vendor,  unless 
such  obligation  can  be  fairly  inferred  from  the  terms  of  the  contract. 

INDEPENDENT  COVENANTS— PLEADING. — In  cases  of  independent  cove- 
nants, a  plea  of  readiness  to  perform,  without  averring  an  offer  of  perform- 
ance, is  bad,  and  furnishes  no  excuse  for  the  non-performance. 

THIS  was  an  action  of  covenant  commenced  in  the  Gallatin 
Circuit  Court,  by  Grundy  against  Buckmaster,  upon  the  fol- 
lowing bond  : 

"  Know  all  men  by  these  presents,  that  I,  Nathaniel  Buck- 
master,  of  the  county  of  Madison  and  State  of  Illinois,  am 
held  and  firmly  bound  unto  "William  Grundy,  of  the  county 
and  State  aforesaid,  in  the  penal  sum  of  four  thousand,  two 
hundred  and  sixty-six  dollars,  good  and  lawful  money  of  the 
United  States,  for  the  true  and  faithful  payment  of  which  I 
bind  myself,  my  heirs  and  executors  and  administrators,  as 
witness  my  hand  and  seal  this  ninth  day  of  January,  1819. 

The  condition  of  the  above  bond  is  such  that  if  the  above 
bound  Nathaniel  Buckmaster  shall  make  a  general  warranty 
deed  in  fee  simple,  to  one  undivided  third  part  of  two  hun- 
dred arid  sixty-seven  acres  and  ninety-seven  hundredths  of  an 
acre,  with  the  ferry  thereunto  belonging,  lying  on  the  east 
bank  of  the  Mississippi,  opposite  the  mouth  of  the  Missouri, 
or  just  above  it,  being  the  tract  or  parcel  of  land  the  said 
Buckmaster  purchased  of  Thomas  Carl  in,  to  William  Grundy, 
by  the  first  day  of  September  next,  then  the  above  obligation 
to  be  void  ;  otherwise  to  remain  in  full  force  and  virtue  in 
law,  as  witness  my  hand  and  seal  this  ninth  day  of  January, 
1819. 

(Signed)  ~N.  BUCKMASTEK.         [L.  s.]  " 

Witness  present,        ) 
ISAAC  C.  DOUGLASS,     j 

*There  was  a  change  of  venue  taken  to  the  John-     [*311] 
son  Circuit  Court,  where  the  cause  was  tried  at  the 
October  term,  1830,  before  the  Hon.  Thomas  C.  Browne  and  a 
jury,  and  a  verdict  and  judgment  rendered  for  the  defendant 
in  error  for  $3,562. 

The  following  statement  of  the  points  and  authorities  relied 
on  by  the  counsel  for  the  plaintiff  in  error  was  furnished  to 
the  Cou?t: 

"  The  defendant  below  demurred  to  the  plaintiff's  declara- 
tion: 1st.  Because  it  contained  no  averment  that  the  plaintiff 
ever  tendered  a  deed  to  be  executed  by  defendant.  (See  2d 

817 


311  VANDALIA. 

Buckinnster  v.  Grundy. 


Saund.  P.  and  E.  901;  Sugdcn,  222.)  2d.  Because  it  contained 
no  averment  that  the  plaintiff  had  paid  defendant  anything 
for  the  land  for  the  title  to  which  the  bond  was  given,  and 
consequently  no  damages  could  accrue  to  the  plaintiff;  and  the 
said  bond  contains  no  acknowledgment  of  money  paid;  and 
in  fact  none  was  paid.  But  the  Court  overruled  the  de- 
murrer and  this  is  the  first  error  assigned. 

The  2d  assignment  of  error  questions  the  propriety  of  the 
Circuit  Court's  sustaining  the  plaintiff's  demurrer  to  the  de- 
fendant's second  plea,  which  plea  alleges  that  the  defendant 
always  has  been  and  still  is  ready  to  make  the  deed  in  the  said 
dec'aration  mentioned. 

The  3d  assignment  of  error  is  founded  on  the  supposition 
that  if  all  the  facts  set  out  in  the  plaintiff's  declaration  be  true, 
yet  it  was  error  to  render  judgment  for  more  than  nominal 
damages,  because  the  only  true  measure  of  damages  in  such  a 
case  is  the  amount  of  the  purchase  money  and  the  interest; 
and  as  no  money  or  anything  else  is  averred  to  have  been 
paid  and  as  the  bonddoQs  not  admit  the  receipt  of  any,  it  was 
error  to  admit  proof  that  any  was  paid;  and  without  such 
proof  no  judgment  could  legally  have  been  entered  up  for 
the  plaintiff;  and  the  4th  assignment  of  error  avers  the  fact 
that  nothing  ever  was  paid  for  the  said  land,  but  that  a  bond 
was  given  for  the  payment  to  Carlin  and  the  same  has  never 
been  paid.  etc. 

We  refer  to  2  Peters,  102;  2  Saund.  P.  and  E.  901;  Sugden 
229;  1  Saund.  P.  and  E.  136;  8  Term  R  130;  Buller's  K  P.  6-7; 
1  Saund.  Rep.  58  C." 

JAMES  SEMPLE  and  D.  PKICKETT,  for  the  plaintiff  in  error. 
II.  EDDY,  for  the  defendant  in  error. 

"WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 
This  is  an  action  of  covenant  brought  upon  a  bond  executed 
by  Buckmasterto  Grundy  for  the  conveyance  OL   land  in  the 
penal  sum  of  $4,266,  with  a  condition  that  Buckinaster  should 
make  to  Grundy  a  warranty  deed  to  a  specified  tract  of 
[*312]    land,  by  *the  first  day  of  September,  1819.   From  the 
record  of  the  proceedings  in  the  Court  below  it  appears 
that  the  defendant  interposed  a  demurrer  to  the  plaintiff's  dec- 
laration which  was  overruled.     He  then  pleaded  two  pleas,  the 
rt  of  which  was  a  plea  of  covenants  performed;  the  second 
plea  merely  alleged  a  readiness  to  perform  his  part  of  the  cove- 
-  in  Ins  bond,  but  did  not  aver  an  offer  to  perform  them  at 
any  time  or  place.    To  this  plea  the  plaintiff  demurred  and  the 

318 


DECEMBEE  TEEM.  1836.  312 

Buckmaster  v.  Gruncly. 

demurrer  was  sustained  by  the  Court.  The  parties  then  went  to 
trial  upon  the  issue  taken  on  the  defendant's  first  plea  of  cove- 
nants performed  and  a  verdict  and  judgment  were  rendered 
against  the  defendant  for  $3,562. 

From  this  decision  the  defendant  appealed  and  assigns  for 
error:  1st,  the  opinion  of  the  Court  overruling  the  demurrer 
to  the  plaintiff's  declaration,  2d,  the  opinion  of  the  Court 
sustaining  the  plaintiff's  demurrer  to  the  defendant's  second 
plea;  and  3d,  the  rendition  of  judgment  upon  the  verdict  of 
the  jury. 

Owing  to  the  earnest  and  somewhat  confident  manner  with 
which  the  counsel  urged  the  sufficiency  of  the  errors  assigned, 
more  care  has  been  taken  in  their  investigation  than  from  the 
familiarity  and  frequent  application  of  the  principles  upon 
which  they  depend  they  would  otherwise  have  been  entitled 
to.  The  first  and  second  assignments  of  error  may  be  con- 
sidered together,  for  the  defendant  may  be  regarded  as  hav- 
ing abandoned  his  demurrer  to  the  plaintiff's  declaration  by 
pleading  over  after  the  declaration  had  been  sustained  by  the 
Court;  yet  as  the  plaintiff's  demurrer  to  the  defendant's  second 
plea  extends  to  the  declaration  and  brings  that  as  well  as  the 
plea  under  review,  and  as  a  defect  in  the  declaration  will  en- 
title the  defendant  to  judgment,  it  will  be  proper  to  notice 
that  first.  One  of  the  objections  to  the  sufficiency  of  the  dec- 
laration is,  that  it  does  not  aver  that  the  plaintiff  tendered  a 
deed  to  be  executed.  The  next  is  that  it  contains  no  aver- 
ment that  the  plaintiff  had  paid  any  consideration  for  the  land 
and  consequently  he  was  entitled  to  no  damages  for  a  failure 
to  convey.  Neither  of  these  objections  are  well  taken.  The 
declaration  is  in  the  usual  form  in  an  action  of  covenant,  and 
by  setting  out  the  bond  upon  which  suit  is  brought,  sufficient 
is  shown  to  entitle  the  plaintiff  to  his  action.  No  statement 
of  consideration  is  necessary  as  the  seal  itself  imports  a  con- 
sideration. Under  the  statute  it  is  true  that  the  want  of  con- 
sideration may  be  put  in  issue  by  a  plea  to  that  effect;  but  this 
method  of  denial  of  the  consideration  upon  which  the  contract 
in  this  case  was  entered  into  has  not  been  adopted  by  the  de- 
fendant and  no  other  mode  will  avail  him.  It  is  also  argued 
that  the  exact  sum  actually  paid  must  not  only  be  averred,  but 
proved;  and  that  the  sum  so  ]  aid  and  interest  constitute  the 
measure  of  damages  to  be  assessed  by  the  jury.  Though  this 
may  be  the  rule  in  an  action  upon  a  warranty  to  re- 
cover back  *the  consideration  in  case  of  eviction,  it  is  [*313] 
not  tho  rule  in  an  action  of  covenan^  for  a  breach  in 
failing  to  convey  according  to  the  terms  of  the  contract.  In 
such  case  the  value  of  the  land  at  the  time  it  is  to  be  conveyed 


312  VANDALIA. 


Buckmaster  v.  Grundy. 


(as  established  by  evidence),  is  the  true  measure  of  damages. 
As  no  exception  was  taken  to  the  verdict  in  the  Court  below, 
we  must  presume  that  the  damages  given  were  warranted  by 
the  evidence. 

The  next  objection  to  the  declaration  is  that  it  does  not  aver 
that  the  plaintiff  prepared  and  tendered  to  the  defendant  a 
deed  for  him  to  execute. 

The  nature  of  the  averments  in  a  decoration  depend  upon 
the  character  of  the  covenants  contained  in  the  deed  upon 
which  suit  is  brought.  Where  they  are  dependent  it  is  essen- 
tial that  the  plaintiff  should  aver  performance,  or  an  offer  to 
perform  the  agreement  on  his  part ;  but  where  they  are  inde- 
pendent, performance  on  the  part  of  the  plaintiff  need  not  to  be 
averred.  In  this  case  the  covenant  of  the  defendant  is  neces- 
sarily independent,  as  the  deed  contains  but  one,  and  that  is 
that  the  defendent,  Buckmaster,  will  make  a  general  warranty 
deed  to  the  plaintiff  by  a  day  named.  No  act  is  to  be  per- 
formed by  the  plaintiff ;  the  undertaking  of  the  defendant  is 
absolute  and  unconditional,  and  expressed  in  language  so  clear 
and  unambiguous  as  to  admit  of  but  one  inference  as  to  what 
was  the  intention  of  the  parties.  To  require  one  party  to  do 
that  which  he  has  not  engaged  to  do,  but  which  the  other  lias, 
would  be  confounding  all  notions  of  justice  and  legal  obliga- 
tion. It  was  therefore  unnecessary  for  the  plaintiff  to  aver  a 
tender  of  a  deed.  For  the  same  reason  that  the  declaration  is 
considered  good,  the  defendant's  second  plea  must  be  adjudged 
bad.  His  covenant  is  unconditional  and  affirmative  that  he 
will,  by  a  day  specified,  make  to  the  plaintiff  a  deed,  etc.  A 
plea,  then,  merely  alleging  a  readiness  to  perform,  furnishes 
no  excuse  for  a  non-performance  when  unconnected  with  any 
apology  for  the  omissitm.  If,  by  a  subsequent  agreement  be- 
tween the  parties,  the  time  of  performance  had  been  extended, 
or  if  by  the  act  of  the  plaintiff  himself  he  had  put  it  out  of 
the  power  of  the  defendant  to  perform  his  covenant,  as  if 
he  had  remained  beyond  the  limits  of  the  State  until  the 
expiration  of  the  time  fixed  for  the  performance  of  the  con- 
tract ;  either  of  these  facts  properly  pleaded  would  have 
afforded  an  excuse  to  the  defendant.  But  as  no  such  excuse  is 
contained  in  the  plea,  the  Court  very  properly  adjudged  it  bad. 
(3  ('ranch,  170.) 

With  regard  to  the  obligation  of  the  vendee  to  prepare  the 
deed  according  to  the  English  authorities  referred  to,  it  is  to 
be  observed  that  those  decisions  were  made  with  reference  to 
the  parties  under  a  system  of  conveyancing  which  has  grown 

320 


DECEMBER  TERM,  1836.  313 

Davenport  et  al.  v.  Farrar. 

up  there,  and  is  well  understood  ;  but  no  such  system 
exists  here,  and  ^parties  to  a  contract  for  the  convey-     [*314] 
ance  of  land  can  not  therefore  be  supposed  to  have 
reference  to  it  as  regulating  the  duty  uf  each  with  respect  to 
the  preparation  of  the  title  papers.     Whatever,  then,  may  be 
the  practice  in  England,  the  purchaser  here  is  not  bound  to 
prepare  and  tender  a  deed  to  the  vendor  unless  such  obligation 
can  be  fairly   inferred  from  the   terms  of  the  contract.     (2 
Rand.  20.) 

The  third  and  last  error  assigned  is,  the  rendition  of  judg- 
ment by  the  Court  upon  the  verdict  of  the  jury.  This  as- 
signment is  without  the  color  of  authority  to  support  it.  The 
action  in  this  case  was  covenant,  and  on  the  defendant's  plea 
of  covenants  performed  the  plaintiff  took  issue.  Upon  the  trial 
the  jury  found  the  defendant  guilty,  and  assessed  the  plaintiffs 
damages  to  $3,562,  for  which  sum  the  Court  rendered  judg- 
ment. The  record  shows  no  application  to  the  Court  to  set 
aside  the  verdict  and  grant  a  new  trial,  nor  does  there  appear 
to  be  any  motion  in  arrest  of  judgment.  Upon  what  princi- 
ple, then,  the  authority  of  the  Court  to  render  judgment  upon 
this  verdict  can  be  contested,  I  am  at  a  loss  to  perceive.  The  issue 
grows  out  of  the  character  of  the  pleadings  and  involves  the 
plaintiff's  right  to  recover,  and  the  verdict  being  responsive  to 
the  issue,  the  judgment  of  the  Court  followed  as  a  necessary 
consequence. 

The  judgment  of  the  Court  below  is  affirmed  with  costs. 

Judgment  affirmed. 

Pleading.  In  connection  with  the  above  case  see  Tyler  v.  Young  etal.,  2 
Scam. ;  Phoabe  v.  Jay,  Breese,  207.  See,  also,  Beers  v.  Phelps,  Breese,  19; 
Peck  v.  Boggess,  ante  281 ;  Baker  v.  Whitside,  Breese,  132. 


GEORGE  DAVENPORT,  JAMES  BENNETT,  HORATIO  NEW- 
HALL,  JOHN  BOLLES,  and  CHARLES  FARNHAM,  ap- 
pellants, v.  SOPHIA  FARRAR,  appellee. 

Appeal  from  Jo  Daviess. 

DOWER — ATTACHES  TO  WHAT. — A  widow  can  only  be  endowed  of  estates 
of  inheritance.* 

A  pre-emption  right  is  not  an  estate  of  which  a  widow  can  be  endowed. 

The  statute  making  equitable  estates  subject  to  dower,  clearly  refers  to 
equitable  estates  of  inheritance  only. 

•  Dower — Right  of,  attaches  to  what. 

In  this  State  the  right  of  dower  attaches  to  all  lands  whereof  the  deceased 
husband  or  wife  was  seized  of  an  estate  of  inheritance,  at  any  time  during 
VOL.  1—21  321 


315  VANDALIA. 


Davenport  et  al.  t>.  Farrar. 


(*315J  *SAME— PETITION— CONTENTS  OF.— The  words  owner  and  pro- 
prietor, are  insufficient  in  a  petition  for  dower,  as  descriptive 
of  the  estate  of  the  deceased  husband  of  the  petitioner.  They  do  not  tech- 
nically, nor  by  common  usage,  describe  an  estate  in  fee  simple,  or  fee  tail. 

When  a  party  comes  into  a  court  of  justice,  it  is  incumbent  upon  him  to 
exhibit  a  right  to  recover,  in  clear  and  legal  language,  otherwise  the  court 
can  not  grant  the  relief  sought. 

A  petition  for  dower  should  state  such  facts  as  would  show  that  the  hus- 
band of  the  petitioner  was  possessed  of  such  an  estate  as  is  contemplated  by 
the  statute. 

THIS  cause  was  finally  heard  in  the  Court  below,  at  the  Au- 
gust term,  1836,  before  the  Hon.  Thomas  Ford. 

A.  COWLES  and  T.  DKUMMOND,  for  the  appellants. 
J.  PEARSON,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  &  petition  filed  by  Sophia  Farrar  in  the  Circuit 
Court  of  Jo  Daviess  county,  to  have  her  dower  assigned  to  her 
under  the  act  entitled  "An  act  for  the  speedy  assignment  of 
Dower )  and  Partition  of  Real  Estate"  approved  6th  February, 
1827.  (E.  L.  236 ;  Gale's  Stat.  252.V  The  petition  states  that 
Sophia  Farrar  is  widow  of  Ainos  Farrar,  deceased,  and  that 
her  husband,  in  his  lifetime,  was  a  joint  owner  and  proprietor 
with  George  Davenport  and  Russell  Farnham,  now  deceased, 
of  the  following  described  real  estate,  situate  in  the  county  of 
Jo  Daviess,  namely,  a  tract  of  land  situate  at  a  place  called 
the  "Portage,"  between  the  Mississippi  and  Fever  rivers, 
about  four  miles  below  Galena,  together  with  a  farm  and  sev- 
eral buildings  and  other  improvements  thereon  erected,  for- 
merly occupied  as  a  tradingestablishmentwithlndians,  by  Dav- 

the  marriage,  unless  relinquished  in  legal  form.  1  Starr  &  C.  111.  Stat.  896, 
and  authorities  cited;  Stribling  v.  Ross,  16  111.  122. 

Doirer  attaches  to  equitable  estates  of  inheritance.  Atkin  v.  Merrell,  39 
111.  62;  Nicoll  r.  Miller,  37  111.  387;  St6w  v.  Steel,  45  111.  328;  Steele  v.  Ma- 
gie.  48  111.  396. 

Dotcer  attaches  to  mines  opened  and  worked  during  the  lifetime  of  the 
deceased  husband  or  wife,  but  not  to  mines  not  opened.  Lenfers  v.  Henke, 
73  111.  405. 

Doirer  does  not  attach  to  a  vested  remainder,  expectant  upon  a  life  estate. 
Strawn  r.  Strawn,  50  111.  33. 

Where  the  deceased  is  entitled  to  a  conveyance,  the  right  attaches.  Stow 
r.  Steel,  45  111.  328;  Strawn  v.  Strawn.  46  111.  412;  Taylor  v.  Kearn,  68  111. 
339;  Greenbaum  r.  Austrian,  70  111.  591. 

Dmctr  attaches  to  wild  and  unimproved  lands.  Schneblv  v.  Schneblv, 
26  111.  116. 

Doirer  attaches  to  accretions  to  riparian  property.  Gale  v.  Kinzie,  80  111. 
132:  Lombard  r.  Kinzie,  73  111.  446. 

Ihnrer  doe*  not  attach  to  improvements  made  after  alienation.  Summers 
».  Babb.  13  111.  483;  Gover.Cather,  23  111.  634;  Wooleyr.  Magie,  26 111.  526. 
822 


DECEMBER  TERM,  1836.  315 

Davenport  et  al.  v.  Farrar. 

enport,  | Farrar  and  Farnliam.  Also  three  lots  of  ground  in 
the  town  of  Galena,  which  are  particularly  described.  The 
petition  further  states  that  Amos  Farrar,  her  said  husband, 
continued  to  hold  the  above  described  premises  jointly  with  the 
said  Davenport  and  Farnham,  to  the  time  of  his  death ;  that 
he  left  one  child,  an  infant ;  and  that  her  dower  in  said  prem- 
ises has  not  yet  been  assigned  and  set  over  to  her,  according 
to  the  intendment  of  law. 

A  variety  of  proceedings  was  had  in  the  Court  below,  which 
it  is  unnecessary  to  recite,  and  which  resulted  in  a  decree  that 
Sophia  Farrar  was  entitled  to  dower  in  the  tract  of  land  and 
town  lots  mentioned  and  described  in  her  petition.  Numer- 
ous errors  have  been  assigned ;  it  will  however  be  unnecessary 
to  notice  any  but  the  following  one,  to  wit :  "That  by  the  rec- 
ord it  appears  that  the  husband  of  the  appellee  had  no  such 
estate  in  the  premises  during  coverture,  and  at  the  time  of  his 
death,  of  which,  by  the  law  of  the  land,  dower  could  be  as- 
signed." By  the  second  section  of  the  act  above  recited,  it  is 
declared,  that  "Every  widow  claiming  dower,  may 
file  her  petition  in  the  Circuit  Court  *of  the  county,  [*316] 
against  the  parties  mentioned  in  the  first  section  of 
the  act,  stating  their  names,  if  known,  setting  forth  the  nature 
of  her  claim,  and  particularly  specifying  the  lands,  tenements 
and  hereditaments  in  which  she  claims  dower,  and  praying 
that  the  same  may  be  allowed  to  her,"  etc.  Does  this  petition, 
with  sufficient  clearness  and  certainty,  set  forth  the  nature  of 
the  claim  to  dower  ?  To  answer  this  question,  it  is  necessary 
to  ascertain  what  estate  a  husband  must  have  in  land,  to  entitle 
his  wife  to  dower  therein.  At  common  law  a  woman  is  enti- 
tled to  be  endowed  of  all  the  lands  and  tenements  of  which 
her  husband  was  seized  in  fee  simple  or  fee  tail  general,  at  any 
time  during  coverture,  and  of  which  any  issue  which  she 
might  have  had  might  by  possibility  have  been  heir.  In 
addition  to  this  provision  of  the  common  law,  the  49th  section 
(R.  L.  627;  Gale's  Stat.  697)  of  the  statute  relative  to  wills  and 
testaments,  executors  and  administrators,  and  the  settlement 
of  estates,  provides,  "  That  equitable  estates  shall  be  subject  to 
the  widow's  dower,  and  all  real  estate  of  every  description  con- 
tracted .for  by  the  husband  in  his  lifetime,  the  title  to  which 
may  be  completed  after  his  decease."  By  the  phrase  "equi- 
table estates,"  in  this  statute,  we  understand  equitable  estates  of 
inheritance.  The  legislature,  in  making  this  alteration  of  the 
common  law,  could  not  have  intended  to  embrace  any  estate 
less  than  an  estate  of  inheritance,  because  estates  for  years 
are  subject  to  the  payment  of  debts,  and  on  distribution  of  the 
surplus  of  the  personal  estate  the  widow  comes  in  for  her 

323 


316  VANDALIA. 


Davenport  etal.  r .  Farrar. 


third  of  that  surplus,  including  estates  for  years.  Does  tlien 
this  petition  show  that  the  husband  of  the  petitioner  was  seized 
of  the  lands  and  lots  mentioned  therein  in  fee  simple,  or  fee 
tail  general?  The  only  words  in  the  petition,  explanatory  of 
the  nature  of  the  estate  of  the  husband,  are,  that  he  was  joint 
oirner  and  proprietor,  with  others,  <»f  the  land  and  lots.  These 
words  do  not  technically,  nor  by  common  usage,  describe  an 
estate  in  fee  simple  or  fee  tail,  but  are  general  words  appli- 
cable to  the  possessors  of  all  estates,  and  may  mean  estates  for 
years,  or  for  life,  as  well  as  estates  of  inheritance.  When  a 
party  comes  into  a  court  of  justice,  it  is  incumbent  upon  him 
to  exhibit  a  right  to  recover  in  clear  and  legal  language,  other- 
wise the  court  can  not  grant  the  relief  sought.  There  should 
IM?  nothing  ambiguous  or  doubtful  in  the  nature  of  the  right 
claimed.  When  certain  words  obtain  in  law  a  particular  signifi- 
cation, and  are  always  used  to  express  a  given  idea,  they  be- 
come technical ;  and  a  willful  or  unnecessary  departure  from 
them  ought  not  to  be  tolerated  by  courts  of  justice,  unless  the 
substituted  words  express  the  same  idea,  and  are  equally  limit- 
ed in  their  signification.  The  petitioner,  then,  not  having  set 
forth  by  words  known  to  the  law  that  her  husband  was  seized 

of  such  an  estate  of  inheritance  as  was  necessary  in 
[*317]  *order  to  entitle  her  to  dower  in  the  premises,  but 

having  used  words  that  are  of  such  general  significa- 
tion as  to  include  other  estates  than  those  of  inheritance,  has 
failed  to  bring  such  a  case  before  the  Court  as  to  entitle  her 
to  recover.  If  the  petition  relied  upon  the  equitable  estates 
mentioned  in  the  statute,  it  still  would  have  been  necessary  to 
state  such  facts  as  would  show  that  her  husband  had  such  an 
equity  as  is  contemplated  by  the  statute.  The  Court  being  of 
opinion  that  the  petition  is  insufficient  to  justify  a  claim  for 
dower,  might  refrain  from  expressing  an  opinion  upon  other 
questions  that  were  argued  in  this  cause  ;  but  as  it  is  probable 
that  new  proceedings  may  be  instituted,  if  no  opinion  is  given 
upon  what  are  probably  the  merits  of  this  cause,  they  deem  it 
advisable  to  state  their  views  as  to  the  question  whether  a  right 
of  pre-emption  under  the  laws  of  Congress  is  such  an  estate 
in  the  husband  that  a  widow  can  be  endowed  of  it.  A  pre- 
emption interest  in  land  is  unknown  to  the  common  law.  Does 
then  a  pre-emptioner  under  the  acts  of  Congress,  possess  in 
law  or  equity  an  estate  of  inheritance?  It  would  seem  to  be 
sufficient  merely  to  state  the  question,  to  answer  it  in  the  neg- 
ative. What  is  his  right?  It  is  a  right  to  purchase  at  a  fixed 
price,  within  a  limited  time,  in  preference  to  others.  If  he  is 
either  unable  or  unwilling  to  purchase  at  the  price,  or  by  the 
time  mentioned  in  the  law,  the  land  can  be  sold  to  others,  and 

834 


DECEMBER  TERM,  1836.  317 

Choisser  «.  Hargrave. 

the  pre-emptioner  turned  out  of  possession  as  an  intruder. 
These  conditions,  annexed  to  his  possession,  clearly  show  that 
his  interest  is  only  temporary,  and  may  never  ripen  into  an  es- 
tate of  inheritance.  While,  therefore,  the  pre-emptioner  re- 
mains in  possession,  his  estate  can  not  be  considered  of  a  high- 
er nature  than  an  estate  for  years,  and  consequently  the  widow 
can  not  be  endowed  of  it. 

The  judgment  must  therefore  be  reversed  with  costs. 

Judgment  reversed. 


JOHN  CHOISSER,  plaintiff  in  error,  v.    BARNEY   HAR- 
GKAVE,  defendant  in  error. 

Error  to  Gallatin. 

NEGHOES — ACT  OF  1807 — VALIDITY  OP. — The  act  of  1807,  of  the  Terri- 
tory of  Indiana,  in  relation  to  the  indenturing  and  registering  of  negroes 
and  mulattoes,  is  clearly  in  violation  of  the  ordinance  of  1787,  and  there- 
fore void. 

The  Constitution  of  this  State  confirms  only  those  indentures  of  negroes 
and  mulattoes  that  we're  made  in  conformity  to  the  act  of  1807,  of  the  Ter- 
ritory of  Indiana;  and  one  of  the  essential  requisites  to  the  validity  of  an 
indenture  under  that  act  was,  that  it  be  made  and  entered  into  within 
thirty  days  from  the  time  the  negro  or  mulatto  was  brought  into  the  Ter- 
ritory. 

*Tms  cause  was  heard  in  the  Court  below,  at  the  July     [*318] 
term,  1835,  before  the  Hon.  Alexander  F.  Grant. 

W.  J.  GATEWOOD,  for  the  plaintiff  in  error. 

H.  EDDY  and  J.  J.  ROUINSON,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
This  action,  for  an  assault  and  false  imprisonment,  was 
brought  by  the  defendant  in  error,  Barney  Hargrave,  a  col- 
ored man,  against  John  Choisser  (who  claimed  the  defendant 
in  error  as  an  indentured  servant,)  to  try  his  right  to  freedom. 
Upon  the  trial  in  the  Circuit  Court,  judgment  was  rendered  in 
favor  of  Barney  Hargrave,  from  which  judgment  Choisser 
has  appealed.  The  facts  in  the  case, as  admitted  by  the  parties, 
are,  that  Barney  "was  brought  into  the  Territory  of  Illinois 
at  or  before  1816,  but  that  he  was  not  indentured  or  registered 

CITED  :  Colored  persons,  held  to  specific  performance.  2  Gil.  21.  See,  also, 
other  authorities  there  cited. 

825 


VANDALIA. 


Choisser  v.  Hargrave. 


until  the  15th  day  of  August,  1818,"  when  he  was  indentured 
to  Willis  Hargrave,  who  transferred  him  to  A.  G.  S.  Wight, 
and  he  to  Choisser.  The  indentures  and  subsequent  transfers 
are  all  in  point  of  form  according  to  the  statute  of  the  Terri- 
tory. The  only  question  is,  whether  a  compliance  with  the 
forms  prescribed  by  the  statute,  does,  under  the  circumstances 
of  this  case,  give  to  Choisser  a  valid  title  to  the  services  of 
Barney,  according  to  the  tenure  of  the  indentures.  By  the 
ordinance  of  Congress  for  the  government  of  the  Territory 
north  west  of  the  Ohio,  passed  in  1787,  it  is  declared,  "  There 
shall  be  neither  slavery  nor  involuntary  servitude  in  said  Ter- 
ritory, otherwise  than  for  the  punishment  of  crimes,  whereof 
the  party  shall  have  been  duly  convicted."  Notwithstanding 
the  prohibition  of  this  ordinance,  an  act  of  the  Territory  01 
Indiana,  passed  in  1807,  and  which  was  continued  in  force  here, 
provides,  "That  it  shall  and  may  be  lawful  for  any  person  be- 
ing the  owner  or  possessor  of  any  negroes  or  mulattoes,  of  and 
above  the  age  of  fifteen  years,  and  owing  service  or  labor  as 
slaves  in  any  of  the  States  or  Territories  of  the  United  States, 
or  for  any  citizens  of  the  said  States  or  Territories  purchasing 
the  same,  to  bring  the  said  negroes  or  mulattoes  into  this  Ter- 
ritory," and  "The  owners  or  possessors  of  any  negroes  or 
mulattoes,  as  aforesaid,  and  bringing  the  same  into  this  Terri- 
tory, shall,  within  thirty  days  after  such  removal,  go  with  the 
Bailie  before  the  clerk  of  the  Court  of  Common  Pleas  of  the 
proper  county,  and'in  presence  of  said  clerk,  etc."  The  owner 
and  the  slave  shall  agree  upon  the  time  the  slave  shall  serve 
his  master,  and  the  clerk  shall  record  such  agreement.  But  if 
the  negro  shall  refuse  to  enter  into  this  agreement,  then  the 
master  is  authorized  within  sixty  days  to  remove  him  from  the 
Territory.  This  act  of  the  Territorial  legislature,  is  clearly  a 
violation  of  the  ordinance  of  Congress  of  1787,  and  conse- 
quently void.  But  by  the  3d  Section  of  the  6th 
[*319]  *Article  of  the  Constitution,  it  is  declared,  that 
"Each  and  every  person  who  has  been  bound  to  ser- 
vice by  contract  or  indenture  heretofore  existing  and  in  con- 
formity with  the  provisions  of  the  same,  without  fraud  or  col- 
lusion, shall  be  held  to  a  specific  performance  of  their  contracts 
or  indentures,  and  such  negroes  or  mulattoes  as  have  been  reg- 
istered in  conformity  with  the  aforesaid  laws,  shall  serve  out 
the  time  appointed  by  said  laws." 

By  this  provision  of  the  Constitution  it  is  contended  that 
Chooser's  title  to  Barney,  as  an  indentured  servant,  is  recog- 
nized and  confirmed.  But  to  sustain  this  position  it  must  an- 
jxjar  that  the  Territorial  statute  has  been  complied  with.  The- 
Constitution  confirms  only  those  indentures  that  were  made  in 

320 


DECEMBEK  TEEM,  1836.  319 

McKinstry  v.  Pennoyer  et  al. 

conformity  to  the  act  of  1807  and  one  of  the  essential  requi- 
sites to  the  validity  of  an  indenture  under  that  act  was,  that  it 
be  made  and  entered  into  within  thirty  days  from  the  time  the 
negro  or  mulatto  was  brought  into  the  Territory.  This  require- 
ment has  not  in  the  present  case  been  complied  with.  It  ap- 
pears both  from  the  depositions  and  the  admissions  of  the  par- 
ties that  Barney  was  brought  into  the  Territory  "at  or  about 
the  year  1816,  but  that  he  was  not  indentured  or  registered 
until  the  15th  of  August,  1818,"  thus  leaving  an  interval  of  at 
least  eighteen  and  a  half  months  between  the  time  when,  he 
was  brought  into  the  Territory  and  the  time  when  he  was  in- 
dentured. This  circumstance  is  conclusive  against  the  claim  of 
Choisser  and  no  inference  in  favor  of  the  regularity  of  the  in- 
dentures can  be  drawn  from  the  lapse  of  time  in  contradiction 
to  the  admitted  facts. 

The  judgment  of   the  Circuit  Court  is   therefore  affirmed 
with  costs. 

Judgment  affirmed. 

Note:    See  Boon  v.  Juliet,  and  note  at  the  end  of  the  case,  ante  258. 


AUGUSTUS  T.  McKiNSTRY,  appellant,  v.  HENRY  PEN- 
NOYER, AUGUSTUS  PENNOYER  and  FREDERICK  PEN- 
NOYER, appellees. 

Appeal  from  Cook. 

PLEA  rrr  ABATEMENT— JUDGMENT. — The  judgment  for  the  defendant  on 
a  plea  in  abatement,  whether  it  be  an  issue  in  fact  or  in  law,  is  that  the 
writ  or  bill  be  quashed;  or  if  a  temporary  disability  or  privilege  be  pleaded, 
that  the  plaint  remain  without  day,  until,  etc.* 

COSTS. — On  an  issue  in  fact  the  defendant  is  entitled  to  costs,  but  not  on 
an  issue  in  law. 

DISCRETION.— The  doctrine  of  discretion  in  the  Circuit  Court  ought  not  to 
be  carried  too  far;  and  this  Court  will  not  extend  it  beyond  previous  decisions. 

THIS  cause  came  on  to  be  heard  at  the  May  term,  1836,  of 
the  Cook  Circuit  Court,  the  Hon.  Thomas  Ford,  presiding. 

CITED:  Proper  judgment  on  overruling  demurrer  to  plea  in  abatement.  3 
0-"m.  201;  2  Gil.  71;  16  111.  308;  17  Id.  35;  20  Id.  330;  58  Id.  97;  5  Bradw. 
428. 

Appeal  and  error— What  amounts  to  final  judgment  or  decree  for  pur- 
poses of.  See  generally,  Wade  v.  Halligan,  16  111.  507;  Sloo  v.  State  Bank, 
mat,  p.  428;  Phelps  v.  Ficke,  63  111.  201;  Hayes  v.  Caldwell,  10  111.33; 
Gage  v.  Rohrbach,  56  111.  262;  Gage  «..  Chapman,  56  111.811;  Gage  r. 
Eich,  56  111.  297;  Chicago  Life  Ins.  Co.  ».  Auditor,  100  111.  478;  Interna- 
tional Bank  v.  Jenkins,  109  111.  219. 

327 


VANDALIA. 


McKinstry  v.  Pennuyer  et  al. 


[*320]  *The  appellant  was  sued  by  the  name  of  Augustus  Mc- 
Kinster.  He  pleaded  in  abatement  of  the  writ  that  his 
name  was  Augustus  T.  McKinstry.  The  plaintiffs  demurred  to 
this  plea.  The  demurrer  was  overruled  and  the  plaintiffs  asked 
leave  to  reply,  which  was  granted  them.  The  defendant  excepted 
to  the  decision  of  the  Court  permitting  the  plaintiffs  to  reply. 
Issue  was  taken  upon  the  replication  that  the  appellant  was 
"called  and  known  as  well  by  the  name  of  Augustus  McKin- 
ster  as  by  the  name  of  Augustus  T.  McKinstry,  and  the  cause 
submitted  to  a  jury,  who  returned  a  verdict  for  the  plaintiffs 
in  the  Court  below  for  $270.  Judgment  was  rendered  on  this 
verdict  and  an  appeal  taken  to  this  Court.  Among  the  author- 
ities cited  by 

JAMES  GRANT  and  W.  B.  SCATES,  for  the  appellant,  the  fol- 
lowing relate  to  the  point  decided  by  the  Court :  2  Saund. 
210  f ;  Steph.  Plead.  176,  178,  140,  184  ;  1  Chit.  Plead.  501 ; 
Comyn's  Dig.  Pleader,  28;  Bac.  Abr.  Abateinent^  28. 

G.  SPRING,  for  the  appellees. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  trespass  on  the  case,  brought  by  Pen- 

An  order  granting  a  new  trial  is  not  final.     Williams  v.   LaValle,  64  111. 

110.  But  see  as  to  order  refusing  a  new  trial.     Smith  v.  Shultz,  post  490. 
An  appeal  lies  on  a  judgment  on  certiorari.    School  Trustees  v.   School 

Directors,  88  Til.  100. 

A  judgment  confirming  a  special  assessment  is  final.  Kilmer  v.  Peo- 
ple, 106  111.  529. 

An  order  striking  suit  from  the  docket  is  not  final.  Frederick  v.  Conn. 
R.  S.  Bk.,  106  111.  147.  ' 

An  order  setting  aside  a  default  is  not  final.  Peoples.  Neal,  3  Bradw. 
i  181. 

An  order  appointing  a  receiver  is  not  final.     Coates  v.  Cunningham,  80 

111.  467. 

An  order  confirming  master's  report  is  final.  Burnham  v.  Lamar  Ins. 
Co.,  79  111.  160. 

A  decree  disposing  of  an  injunction,  the  bill  being  for  that  only,  is  final. 
Prout  v.  Lomer,  79  111.  381;  Lacey  v.  Baker,  5  Bradw.  426;  Hedges  v. 
Mevprs,  5  Bradw.  347;  Bissell  v.  Lloyd,  6  Bradw.  460.  See,  also,  Pentacost 
v.  Magahee,  5  111.  £26. 

An  order  denying  motion  to  dissolve  fin  injunction  is  not  final.  Keel  v. 
Bentley,  15  111.  228.  Nor  is  an  order  denying  a  motion  for  a  temporary  in- 
junction. Frederick  v.  Conn.  R.  S.  Bk.,  106  111.  147. 

A  decree  entered  in  vacation,  does  not  become  final  until  the  next  term. 
Owens  v.  Crossett,  104  111.  468;  Hook  v.  Richeson,  106  111.  392. 

An  order  dismissing  an  appeal  is  final.   Schmidt  v.  Skelly,  10  Bradw.  564 ; 

A  judgment  by  the  Appellate  Court  reversing  and  remanding  the  cause, 
i*  not  final.  Andersons.  Fruitt,  108  111.  378;  Trustees  v.  Potter,  108  111. 
433;  International  Bankr.  Jenkins,  109  111.  219;  Buck  v.  Hamilton  Co.,  99 
111.  507. 

328 


DECEMBEE  TEEM,  1836.  320 

McKinstry  v.  Pennoyer  et  al. 

noyer  and  others  against  McKinstry.  The  defendant  below  in 
proper  person  pleaded  in  abatement,  a  misnomer  of  his  name, 
and  prayed  judgment  of  the  writ  that  it  be  quashed.  To  this 
plea  the  plaintiffs  below  demurred  and  defendant  joined  in 
demurrer.  After  argument  in  the  Circuit  Court  the  demurrer 
was  overruled,  whereupon  the  plaintiffs  moved  the  Court  for 
leave  to  answer  over  to  the  defendant's  plea,  which  was 
granted;  the  granting  of  which  motion  was  excepted  to  by  the 
defendant's  counsel,  who  moved  for  final  judgment  on  the  de- 
murrer. Granting  leave  to  the  plaintiffs  below  to  reply,  and 
the  refusal  to  give  final  judgment  on  the  demurrer,  are  among 
the  causes  assigned  for  error. 

The  question  arising  from  this  assignment  of  error  is,  wheth- 
er the  decision  of  the  Circuit  Court  on  the  demurrer  was 
final,  or  had  the  Court  a  discretionary  power  to  grant  the 
plaintiffs  leave  to  answer  over.  The  rule  laid  down  in  the 
books  of  practice  and  pleading  is,  that  when  a  plea  in  abate- 
ment is  regularly  put  in,  the  plaintiff  must  reply  to  it  or  de- 
mur. If  lie  reply,  and  an  issue  in  fact  be  thereupon  joined 
and  found  for  him,  the  judgment  is  peremptory,  quodreeuperet; 
but  if  there  be  judgment  for  the  plaintiff  on  demurrer  to  a 
plea  in  abatement  or  replication  to  such  plea,  the  judgment  is 
only  interlocutory,  quod  respondeat  mister.  The  judgment  for 
the  defendant  on  a  plea  in  abatement,  whether  it  be  an  issue  in 
fact  or  in  law,  is  that  the  writ  or  bill  be  quashed;  or  if 
a  temporary  disability  or  privilege  be  pleaded,  *that  [*321] 
the  plaint  remain  without  day  until,  etc.  On  an  issue 
in  fact  the  defendant  is  entitled  to  costs,  but  not  on  an  issue  in 
law.  (1  Tidd's  Prac.  693-4,  2d  Am.  Ed;  1  Chit.  Plead.  405.) 

According  to  the  principles  above  laid  down,  the  Circuit 
Court,  upon  overruling  the  plaintiffs'  demurrer  to  the  defend- 
ant's plea  in  abatement,  should  have  given  judgment  that  the 
writ  be  quashed.  This  is  conceded  to  be  the  law  in  the  writ- 
ten arguments  presented  to  this  Court  by  the  defendants  in 
error ;  but  they  contend  that  the  Circuit  Court  might  in  its 
discretion  permit  the  plaintiffs  below  to  amend  by  taking  issue 
on  the  plea  in  abatement.  This  doctrine  of  discretion  ought 
not  to  be  carried  too  far.  It  tends  to  produce  contradictory 
decisions  in  the  Circuit  Courts,  without  power  in  the  appellate 
tribunal  to  correct  error,  and  thus  produce  uniformity.  This 
Court,  therefore,  can  not  extend  the  doctrine  of  discretion 
farther  than  previous  decisions  have  done,  unless  it  be  where 
from  the  nature  of  the  case  the  Court  must  necessarily  have 
a  discretionary  power.  As  neither  the  books  of  practice  nor 
adjudged  cases,  as  far  as  they  have  come  to  our  knowledge, 
recognize  any  such  ditcretion  in  the  Court  as  is  claimed  in  this 

329 


32?  VANDALIA. 


Smith  et  ol.  v.  Hileman. 


The  judgment,  therefore,  of  the  Circuit  Court,  must  be 
affirmed  with  costs. 

Judgment  affirmed. 

See  the  case  of  Swaff  jrd  v.  The  People,  ante  k89;  Dediuan  v.  Barber, 
ante  254. 


JOHN  DOE,  ex  dem.  JAMES  S.  SMITH,  and  HARRIET,  his 
wife,  WILLIAM  WEAVER,  JAMES  WEAVER,  WILLIAM 
ECHOLS,  and  SOPHIA,  his  wife,  and  BARTHOLOMEW 
J.  EVANS,  and  MARIA,  his  wife,  plaintiffs  in  error,  v. 
DANIEL  HILEMAX,  defendant  in  error. 

Error  to  Union. 

ADMINISTRATORS — APPLICATION  TO  SELL  REAL  ESTATE— ^STATUTES. — 
The  act  of  1827  did  not,  like  the  act  of  1829,  require  that  application  to  sell 
real  estate  by  administrators  should  be  made  to  the  Circuit  Court  of  the 
county  in  which  administration  was  granted.  Under  that  act,  an  applica- 
tion to  the  Circuit  Court  of  the  county  in  which  the  real  estate  was  situated 
was  sufficient. 

§  6  of  the  act  of  1827,  required  that  an  administrator's  deed  of  real  estate, 
should  set  forth  "  at  large,  the  order  of  the  Circuit  Court  directing  the  sale.'.' 
A  recital  of  the  substance  of  such  order  is  not  a  compliance  with  the  act. 

SAME — SPECIAL  POWER. — A  special  power  granted  by  statute,  affecting 
the  rights  of  individuals,  and  wbjch  divests  the  title  to  real  estate,  ought  to 
be  strictly  pursued,  and  should  so  appear  on  the  face  of  the  proceedings. 

PAYMENT — IN  WHAT  FUNDS. — The  Circuit  Court  has  no  power  to  direct  a 
sale  of  real  estate  by  an  administrator,  to  be  made  for  any  other  funds  than 
<he  legal  currency  of  the  State.  The  direction  to  take  payment  in  notes  of 
the  State  Bank  of  Illinois  was  not  warranted  by  law.  But  such  direction 
did  not  render  the  proceedings  void,  but  voidable  only.  Such  a  direction 
does  not  render  a  record  of  an  order  of  sale  inadmissible  as  evidence. 

SAME — DEED — SUFFICIENCY  OF. — An  administrator's  deed  under  the 
act  of  1827,  which  does  not  contain  the  order  "  at  large,"  for  the  sale  of  the 
premises,  is  insufficient,  and  can  not  be  received  as  evidence  in  an  action  of 
ejectment,  to  support  the  title  of  the  grantee  in  such  deed. 

THIS  cause  was  tried  at  the  November  texm,  1835,  of  the 
Union  Circuit  Court,  before  the  Hon.  Jepthah  Hardin  and  a 
jury.  A  verdict  and  judgment  were  rendered  for  the  defend- 
ant. 

[*32i]        *DAVID  J.  BAKER  and  HENRY  EDDY,  for  the  plaint- 
iffs in  error. 

J.  DOUGHERTY,  "W.  J.  GATEWOOD,  and  W.  B.  SCATES,  for  the 
defendant  in  error. 


CITED:  Validity  of  administrator's  deed.     4  Scam.  875. 


DECEMBEE  TEEM,  1836.  324 

Smith  et  al.  v.  Hileman. 

SMITH,  Just'ce,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  ejectment  brought  by  the  heirs  of  J. 
Weaver,  deceased,  for  the  recovery  of  the  possession  of  a  quar- 
ter section  of  land  in  Union  county,  sold  by  the  administrators 
of  Weaver,  and  purchased  by  the  father  of  the  defendant, 
Hileman,  and  devised  to  the  defendant.  There  were  separate 
demises  laid  from  each  heir,  and  a  plea  of  not  guilty ;  a  ver- 
dict and  judgment  for  defendant.  The  cause  is  brought  to  this 
Court  on  a  writ  of  error.  During  the  progress  of  the  trial,  a- 
bill  of  exceptions  was  taken  to  the  opinion  of  the  Circuit  Court 
in  admitting  the  petition,  proceedings,  and  judgment  of  the 
Circuit  Court  of  Union  county  some  years  previous,  under  the 
laws  relative  to  the  sale  of  the  real  estate  of  intestates,  whose 
personal  estates  were  insufficient  to  pay  the  debts  of  such  intes- 
tates, and  the  evidence  of  such  sale,  and  the  deed  made  to 
Jacob  Hileman,  the  purchaser,  at  such  administrator's  sale. 
Under  the  exceptions  taken,  the  counsel  for  the  plaintiffs  in 
error  now  make  the  following  points  for  the  consideration  of 
this  Court,  and  assign  the  same  for  error. 

1st.  The  Circuit  Court  erred  in  permitting  said  defendant  to 
read  to  the  jury  the  order  of  said  Circuit  Court,  directing  the 
sale  of  the  land  in  question. 

2d.  The  Circuit  Court  erred  in  permitting  the  said  defend- 
ant to  read  in  evidence  to  the  jury,  the  paper  purporting  to 
be  a  deed  from  the  administrators  of  Weaver,  deceased,  to 
Jacob  Hileman,  deceased. 

3d.  The  deed  is  defective  and  void,  because  it  does  not  set 
forth  the  order  of  sale  at  large. 

4th.  It  does  not  show  a  sale  made  according  to  the  order  of 
the  Court. 

5th.  The  order  of  sale  authorizing  the  notes  of  the  State 
Bank  of  Illinois  to  be  received  in  payment,  was  unauthorized, 
and  the  Court  had  no  legal  power  to  make  such  order. 

6th  and  7th.  The  application  for  the  order  of  sale,  was  not 
made  in  the  county  in  which  letters  of  administration  were 
granted. 

The  preceding  objections  seem  to  resolve  themselves,  except 
that  made  under  the  fifth  head,  into  two,  and  are  embraced  in 
them. 

1st.  That  the  application  for  the  order  to  sell  the  lands  was 
addressed  to  a  tribunal  having  no  legal  cognizance  of  the  sub- 
ject. 

2d.  That  the  deed  does  not  conform  to  the  prerequisites  of 
the  law  giving  the  form  and  mode  of  conveyance. 

*The  first  objection  is  not  tenable.  The  act  of  [*325] 
1827,  under  which  the  proceedings  were  had,  does  not, 


:,-_.,  VANDALIA. 


Smith  et  al.  v.  Hileman. 


like  the  act  of  1S29  (R.  L.  64-1-2;  Gale's  Stat.  711),  require  that 
the  application  should  be  made  to  the  Circuit  Court  of  the 
county  "in  which  administration  shall  have  been  granted." 
The  application  is  not  restricted,  and,  as  it  was  made  to  the 
Circuit  Court  of  the  county  where  the  lands  lie,  we  perceive 
no  objection  to  the  power  of  the  Court  to  direct  the  sale  on 
the  score  of  jurisdiction.  On  the  second  point  it  seems  very 
clear  that  the  deed  is  not  conformable  to  the  statute.  The 
words  are  imperative.  The  Oth  section  of  the  act  of  1827  de- 
clares that  "  the  conveyance  for  the  same  shall  set  forth  such 
order  at  large."  The  reason  of  this  precision  we  are  not  at 
liberty  to  inquire  into,  nor  what  the  supposed  necessity  may 
have  been  in  the  opinion  of  the  legislature  for  its  adoption.  It 
is  sufficient  to  perceive  that  a  recital  of  the  substance  of  the 
order  is  not  a  compliance  with  or  an  observance  of  the  act.  A 
special  power  granted  by  statute,  affecting  the  rights  of  in- 
dividuals and  which  divests  the  title  to  real  estate,  ought  to 
be  strictly  pursued  and  should  appear  to  be  so  on  the  face  of 
the  proceedings. 

In  the  present  case  the  contents  of  the  order  are  not  set 
forth  in  the  deed;  there  is  a  mere  recital  that  the  sale  had 
been  made  in  pursuance  of  the  order  of  the  Court,  but 
what  the  terms  of  that  order  were  is  nowhere  declared  in  the 
dceiir  It  can  not  then  be  doubted  that  the  omission  to  set  out 
order  is  fatal. 

The  order  as  to  the  description  of  funds  to  be  received  un- 
der the  sale  was  irregular.  The  Court  could  only  direct  a 
sale  to  be  made  for  the  legal  currency  of  the  State.  None 
other  could  be  recj>gnized;  and  the  direction  to  take  pay- 
ment in  notes  ofxflie  State  Bank  of  Illinois,  was  not  war- 
ranted by  law.  / 

The  proceedings  of  the  Circuit  Court  of  Union  county,  in 
relation  to/mis  order,  were  not  however  absolutely  void  for  that 
cause,  brtt  voidable  only.  The  defendants  might  reverse  the 
proceedings  for  the  error,  but  still  the  record  of  them  for  that 
cause  was  not  inadmissible  as  evidence. 

But  the  deed  ought  not  to  have  been  admitted  as  evidence 
and  the  decision  of  the  Circuit  Court  by  which  it  was  admitted 
was  clearly  erroneous. 

For  these  reasons  the  judgment  of  the  Circuit  Court  is  re- 
versed with  costs. 

Judgment  reversed. 


DECEMBER  TERM,  1836.  326 

Kinman  t\  Bennett. 

*KINMAN,  appellant,  v.  BENNETT,  appellee.      [*326] 

Appeal  from  Pike. 

PRACTICE — COSTS. — Where  a  cause  is  dismissed  upon  motion  of  the 
plaintiff  it  should  be  at  his  costs. 

Where  the  record  of  the  Circuit  Court  does  not  show  for  what  cause  an 
appeal  was  dismissed  and  a  judgment  for  costs  is  rendered  against  the  ap- 
pellant, the  judgment  will  be  reversed. 

THIS  was  originally  a  suit  before  a  justice  of  the  peace  of 
Pike  county,  by  Bennett  against  Kinman.  On  the  return  of 
the  summons,  to  wit,  on  the  9th  day  of  January,  1836,  the, 
parties  appeared  before  the  justice  and  after  the  hearing  of 
the  cause,  judgment  was  suspended  by  the  justice  for  ten  days, 
at  the  end  of  which  time,  to  wit,  on  the  18th  day  of  January, 
1836,  judgment  was  rendered  against  Kinman  for  $64  and 
costs.  Kinman  appealed  to  the  Circuit  Court  of  Pike  county 
and  filed  his  bond  in  the  clerk's  office,  which  was  approved  by 
the  clerk  on  the  23d  day  of  January,  1836. 

At  the  April  term,  1836,  of  the  Court  below  the  cause  was 
continued;  and  at  the  September  term  following,  the  Hon.  R. 
M.  Young  presiding,  the  defendant  moved  to  dismiss  the  suit 
for  want  of  jurisdiction  in  the  justices  of  the  peace,  and  the 
plaintiff  also  moved  the  Court  to  dismiss  the  appeal.  The 
Court  dismissed  the  appeal  and  rendered  a  judgment  for  costs 
against  Kinman,  from  which  he  appealed  to  this  Court. 

ALPHEUS  WHEELER,  for  the  appellant,  cited  R.  L.  387  §  3, 
390  §  9,  395  §  30.  (Gale's  Stat.  403,  405,  409.) 

J.  "W.  WHITNEY,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
This  cause  was  originally  tried  before  a  justice  of  the  peace, 
from  whose  decision  in  favor  of  Bennett,  the  plaintiff  below, 
Kinman  took  an  appeal  to  the  Circuit  Court,  and  that  Court, 
upon  the  motion  of  both  the  plaintiff  and  the  defendant,  dismissed 
tl  e  appeal  and  gave  judgment  against  defendant,  Kinman,  for 
costs;  from  which  decision  he  prosecutes  this  appeal.  There 
is  no  bill  of  exceptions,  nor  anything  in  the  record  from 
which  we  can  learn  what  the  subject-matter  of  the  suit  was,  or 
for  what  cause  it  was  dismissed.  We  are  therefore  of  opinion 
that  the  Circuit  Court  erred  in  giving  judgment  against  the 
defendant  below  for  costs.  If  the  cause  was  dismissed  for  the 
want  of  jurisdiction  in  the  Court,  it  should  have  been  dis- 
missed at  the  costs  of  the  plaintiff ;  or  if  it  was  on  the  plaint- 
ass 


326  VANDAL1A. 


Aiken  v.  Deal. 


iff's  own  motion  that  his  cause  was  dismissed,  it  ought  to  have 

been  done  at  his  costs. 
[*327]       *The  judgment  below  is  therefore  reversed  at  the 

costs  of  the  appellee. 

Judgment  reversed. 


AIKEN  v.  DEAL. 

Motion  to  set  aside  a  default,  and  vacate  a  judgment,  in  the  Peoria  Circuit 

Court. 

The  Supreme  Court  will  not,  on  motion,  set  aside  a  default,  and  vacate  a 
judgment  of  a  Circuit  Court. 

AT  this  term  of  the  Court  came  Joshua  Aiken  and  filed  his 
affidavit,  stating  that  on  or  about  the  25th  day  of  August, 
1834,  a  suit  was  instituted  against  him  in  the  Peoria  Circuit 
Court,  by  Philip  G.  Deal.  That  affiant  understood  and  be- 
lieved that  the  suit  was  commenced  by  Compiler  and  Deal,  of 
which  firm  Philip  G.  Deal  was  a  partner,  and  with  which 
firm  he  had  had  dealings,  and  against  whom  he  had  a  set-off. 
That  affiant  never  had  any  transactions  with  Deal  individually, 
and  owed  him  nothing.  That  the  affiant  left  the  State,  on 
business,  before  the  session  of  the  April  term  of  the  Court,  1835, 
to  which  the  summons  in  said  suit  wras  returnable,  and  did  not 
return  until  after  said  term  had  passed.  That  he  employed 
an  attorney  residing  at  Peoria,  to  attend  to  his  defense  in  the 
suit  of  Compher  and  Deal  against  him,  but  the  ?aid  attorney, 
in  consequence  of  the  mistake  in  the  title  of  the  cause,  or  for 
some  other  reason  unknown  to  the  affiant,  neglected  to  attend 
to  his  defense.  That  before  affiant  left,  he  filed  a  statement 
of  his  set-off  against  Compher  and  Deal,  with  the  clerk  of  the 
Peuria  Circuit  Court,  and  made  affidavit  of  its  correctness. 
That  at  the  said  April  term  of  said  Court,  a  judgment  was 
rendered  by  default  against  him  in  said  cause  of  Deal  against 
him,  for  $239.83£.  That  Compher  and  Deal  are  insolvent. 
That  an  injunction  had  been  granted,  staying  the  proceedings 
on  said  judgment ;  but,  owing  to  some  informality  in  the 
bond,  said  injunction  had  been  dissolved  by  the  Peoria  Circuit 
Court.  That  affiant  was  indebted  to  Compher  and  Deal  in 
the  sum  of  $28.79|,  upon  the  same  account  upon  which  judg- 
ment was  recovered  by  Deal,  and  no  more ;  and  that  said 
judgment  is  unjust,  except  for  the  sum  $28.79£;  and  moved 
the  Court  to  set  aside  the  default  in  said  cause,  and  vacate 
said  judgment  in  the  Peoria  Circuit  Court. 

336 


DECEMBEE  TEEM,  1836.  327 

Aiken  t?.  Deal. 

E.  SOUTHWICK,  for  the  applicant : 

1.  The  defendant  in  the  Court  below  has  been  guilty  of  no 
laches,  and  has  acted  b&najide. 

*2.  The  defendant  has  lost  his  remedy  or  redress     [*32S] 
by  appeal,  in  consequence  of  not  having  it  in  his 
power  to  comply  with  the  requisition  of  the  statute  in  relation 
to  appeals. 

3.  The  defendant's  remedy  is  ineffectual  against  the  firm  of 
Compiler  and  Deal,  in  consequence  of  their  insolvency. 

4.  The  general  equity  of  the  case,  the   defendant  having 
lost  his  opportunity  for  a  set-off  in  the  Court  below. 

5.  The  Court  has  an  equity  jurisdiction  where  a  defense 
has  not  been  made  in  the  Court  at  law.     Hughes  v.  McConn, 
3  Bibb,  254.- 

6.  A  motion  in  a  Superior  Court,  founded  on  an  affidavit, 
to  set  aside  a  judgment  by  default  in  the  Court  below,  is  not 
informal.     Cogswell  v.  Vanderburgh,  1  Caines,  taken  from  2 
Johns.  Dig.  97. 

7.  Nothing   shall  be   intended  to  be  out  of  the  jurisdic- 
tion of  a  Superior  Court,  which  does  not  expressly  appear  to 
be  so.     1  Saund.  74,  Peacock  v.  Bell  and  Kendall. 

Per  Curiam. 

The  motion  ifi  denied. 

Motion  denied. 

VOL.  1-22  337 


DECISIONS 


SUPREME  COURT 


OP  THE 


STATE  OF  ILLINOIS, 

DELIVERED 

JUNE  TERM,  1837,  AT  VANDALIA. 

Note.    At  this  term  Justice  BROWNE  was  not  present. 

CORNELIUS  HURLEY,  plaintiff  in  error,  v.  BENJA- 
MIN F.  MARSH  and  CHARLES  MARSH,  defendants  in 
error. 

Error  to  Hancock. 

ASSAULT  AND  BATTERY — VENUE. — The  venue,  in  an  action  for  assault 
and  battery,  is  transitory. 

SAME — PLEADING — PROOF. — Where  a  declaration  stated  that  the  assault 
and  battery  were  committed  "at  Montebello,  in  the  county  of  Hancock,  and 
,  within  the  jurisdiction  of  this  Court:"  Held,  that  it  was  unnecessary  to 
prove  that  the  assault  and  battery  were  committed  within  the  town  of  Mon- 
tebello. 

THIS  cause  was  heard  in  the  Hancock  Circuit  Court,  at  the 
April  term,  1836,  before  the  Hon.  R.  M.  Young. 

J.  "W.  WHITNEY,  for  the  plaintiff  in  error,  cited  the  follow- 
ing authorities : 

Stephen  on  Pleading,  153-4;  Idem.  §  4,  Rule  1,  297-312; 
Appendix  to  do.,  notes  60,  61,  262;  R  L.  379-80  (Gale's  Stat. 
396-7)  §§  1,  2,  6;  Norris'  Peak,  292-3:  Idem.  501;  1  Chit. 
Plead.  143. 

J.  H.  RALSTON,  for  the  defendant  in  error. 


JUJSTE  TEEM,  1837.  329 

Hurley  v.  Marsh  et  al. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  for  an  assault  and  lattery  commenced 
in  the  Hancock  Circuit  Court  The  declaration  states  that 
the  defendants  "  at  the  town  of  Montebello,  in  the 
county  of  Hancock,  *and  within  the  jurisdiction  of  [*330] 
this  Court,  with  force  and  arms  made  an  assault  on 
the  plaintiff,  and  him  then  and  there  did  beat,"  etc.  On  the 
trial,  the  plaintiff  to  maintain  his  cause  of  action,  proved  that 
the  defendants  committed  an  assault  and  battery  upon  the 
plaintiff;  but  the  witness,  on  being  asked  if  the  defendants 
committed  the  assault  and  battery  within  the  town  of  Monte- 
bello, stated  that  the  assault  and  battery  were  committed 
without  the  town  of  Montebello,  about  five  miles  off,  but 
within  the  county  of  Hancock.  "Whereupon  the  defendant's 
counsel  objected  to  any  assault  and  battery  being  proved,  un- 
less they  were  committed  within  the  town  of  Montebello;  be- 
cause the  pla.intiff  had  laid  his  venue  to  be  "  at  Montebello." 
This  objection  the  Court  below  sustained,  and  nonsuited  the 
pi  pontiff.  The  cause  is  brought  into  this  Court  by  writ  of  er- 
ror, and  the  only  question  raised  is,  whether  the  plaintiff  was 
bound  to  prove  an  assault  and  battery  within  the  town  of  Mon- 
tebello. 

The  venue  in  an  action  for  an  assault  and  battery  is 
transitory,  and  may  be  laid  in  the  county  where  the  action 
is  brought,  without  rendering  it  necessary  for  the  plaintiff  to 
prove  that  the  cause  of  action  arose  where  laid.  The  words 
"  at  Montebello,  in  the  county  of  Hancock,  and  within  the 
jurisdiction  of  this  Court,"  are  the  usual  words  for  laying 
the  venue,  and  ought  not  to  be  construed  to  be  descriptive 
of  the  place  where  the  injury  was  committed.  "At" 
means  either  "in  "  or  "  near,"  and  by  considering  it  as  laying 
a  venue,  and  not  descriptive  of  the  place,  no  variance  ex- 
isted between  the  declaration  and  proof.  2  East,  47 7;  4  Term. 
557.  ' 

The  Circuit  Court  erred  in  nonsuiting  the  plaintiff. 

The  judgment  below  is  reversed  with  costs,  and  the  cause 
ermanded  for  a  new  trial. 

Judgment  reversed. 


880  YANDALIA. 


Ballingall  r.  Spraggins. 


JOHN  DOE,  ex  dem.  PETEK  W.  BALLINGALL,  plaintiff  in 
error,  v.  THOMAS  SPRAGGINS,  defendant  in  error. 

Error  to  Jo  Daviess. 

PRACTICE — TRIAL — NONSUIT — EXCEPTIONS — BILL  OF. — In  a  cause  tried 
by  the  Court  without  the  intervention  of  a  jury,  a  bill  of  exceptions 
can  not  be  taken  to  the  final  judgment  of  a  Circuit  Court  nonsuiting1  the 
plaintiff,  even  where  it  is  agreed  by  the  parties,  that  either  party  shall  have 
the  same  right  to  except  as  if  the  cause  were  tried  by  a  jury. 

A  bill  of  exceptions  will  only  lie  for  receiving1  improper  testimony,  or 
rejecting  proper  testimony,  or  for  misdirecting  the  jury  on  a  point  of  law. 

THIS  cause  was  heard  at  the  April  term,  1836,  of  the  Jo 
Daviess  Circuit  Court,  before  the  Hon.  Thomas  Ford. 

[*331]         *L.  BIGELOW,  for  the  plaintiff  in  error. 
W.  J.  GATEWOOD,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  ejectment  brought  in  the  Jo  Davicss 
Circuit  Court,  to  recover  the  possession  of  a  lot  of  ground  in 
the  town  of  Galena.  The  cause  was  tried  by  the  Court,  by 
consent  of  parties,  without  a  jury,  and  it  was  agreed  by 
the  parties,  "  That  both  or  either  party  should  have  the  same 
right  to  except  as  if  this  cause  were  tried  by  a  jury." 

A  bill  of  exceptions  was  taken  by  the  plaintiff  on  the  trial, 
by  which  it  appears  that  testimony  was  given  by  both  parties 
on  the  question  raised  on  the  trial,  whether  a  deed  purport- 
ing to  have  been  executed  by  Spraggins  to  Ballingall,  had  been 
duly  delivered.  The  Court  was  of  opinion  that  there  was  not 
sufficient  proof  of  the  delivery  of  the  deed,  and  nonsuited  the 
plaintiff.  This  decision  the  plaintiff  assigns  for  error. 

The  point  presented  in  this  case  for  our  decision  is,  whether 
a  bill  of  exceptions  will  lie  to  the  opinion  of  the  Court,  where 
the  Court  hears  the  testimony  on  both  sides,  and  then  decides 
according  to  the  weight  of  testimony.  Had  this  cause  been 
tried  by  a  jury  in  the  ordinary  mode,  the  bill  of  exceptions 
would  not  have  been  signed.  The  judge  neither  received  im- 
proper, nor  rejected  proper  testimony,  and  as  there  was  no 
jury,  there  was  no  misdirection  on  a  point  of  law.  The  bill  of 
exceptions,  then,  according  to  the  decision  of  this  Court  in  the 
case  of  Swafford  v.  Dovenor,  decided  in  February,  1835, 
•was  improperly  allowed. 

310 


JUNE  TEEM,  183T.  331 

Garrett  v.  Phelps. 

The  judgment  below  is  consequently  affirmed  with  costs. 

Judgment  affirmed. 

Ante  165.     See   also  White  et  al.  v.  Wiseman,    ante  169;    Gilmore  v. 
Ballarcl,  ante  252;  Stringer  v.  Smith  efc  al.,  ante  295;  note,  ante  167. 


ROBERT  GARRETT,    impleaded    with  ELI 

plaintiff  in  error,  v.  JOHN  PHELPS,  who  sues  for  the 
use  of  Henry  D.  Rhea,  defendant  in  error. 

Error  to  Madison. 

PRACTICE — JUDGMENT  BY  DEFAULT — WHEN  IRREGULAR. — A  judgment 
by  default  is  irregular  unless  it  appear  by  a  return  on  a  process,  that  it  had 
been  served,  and  on  what  day  service  was  made. 

SAME — REVERSAL — EFFECT. — The  reversal  of  a  judgment  by  default  where 
process  from  the  Court  below  had  not  been  served  on  the  defendant  in  that 
Court,  does  not  prejudice  any  future  proceedings. 

J.  SEMPLE,  for  the  plaintiff  in  error. 

* J.  B.  THOMAS,  D.  PKICKET,  and  J.  H.  KRUM,  for  the  [*332] 
defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
It  is  assigned  for  error  in  this  case,  that  it  does  not  appear 
from  the  record  that  the  summons  had  been  served  on  the  de- 
fendant below.  The  summons  in  the  Court  below  was  issued 
against  Garrett  and  another,  but  no  return  was  made  on  the 
summons  of  service  on  either  of  the  defendants.  The  record, 
however,  states  that  Garrett,  "  who  was  alone  served  with  proc- 
ess, made  default,"  and  judgment  was  rendered  against  him. 
This  was  clearly  erroneous.  In  order  to  render  a  judgment  by 
default  regular,  it  should  appear  by  a  return  on  the  process 
that  it  had  been  served,  and  on  what  day  service  was  made. 
For  this  error  the  judgment  is  reversed  with  costs  ;  but  the 
reversal  is  not  to  operate  to  the  prejudice  of  any  future  pro- 
ceedings. 

Judgment  reversed. 

Note.  See  Ditch  v.  Edwards,  ante  127;  Wilson  v.  Greathouse,  ante  174; 
Clemson  et  al.  v.  Hamm,  ante,  176;  Ogle  r.  Coffey,  ante,  239. 

CITED:    Decree  against  party  not  served,  erroneous.    47111.415. 

ail 


:,;•-  VANDALIA. 


Hull  t>.  Blaisdeil  et  al. 


ABIJAH  HULL,  plaintiff  in  error,  v.  ABNER  BLAISDELL 
and  JOHN  C.  SMITH,  defendants  in  error. 

Error  to  Madison. 

VARIANCE — WHEN  MATERIAL. — The  rule  of  law  applicable  to  variance 
is.  that  whenever  an  instrument  in  writing  or  a  record  is  not  the  foundation 
of  the  action,  a  variance  is  not  material,  unless  the  discrepancy  is  so  great  as 
to  amount  to  a  strong  probability  that  it  can  not  be  the  instrument  or  record 
described.* 

JUSTICE — JURISDICTION. — A  justice  of  the  peace  has  not  jurisdiction  of 
an  action  by  attachment  for  a  demand  exceeding  §30. 

ATTACHMENT — WRIT  OF — VARIANCE. — Where  the  writ  of  attachment 
described  in  a  declaration,  in  an  action  of  trespass  against  a  justice  of  the 
peace  for  issuing  an  attachment  where  he  had  no  jurisdiction,  was  for 
838.12J-2,  and  the  writ  of  attachment  produced  in  evidence  was  for  837.50. 
Held  that  there  was  no  material  variance. 

JUSTICE  AND  CONSTABLE — WHEN  TRESPASSERS. — The  justice  of  the 
peace  who  issues,  and  the  constable  who  ^executes,  process  in  a  case  where 
the  justice  has  not  jurisdiction,  are  both  liable  as  trespassers. 

THIS  canse  Avas  tried  at  the  April  term,  1833,  of  the  Madi- 
son Circuit  Court,  before  the  HOD.  Theophilus  W.  Smith 
and  a  jury,  and  a  verdict  and  judgment  rendered  for  the 
defendant. 

A.  COWLES,  for  the  plaintiff  in  error,  cited  20  Johns.  355  ; 
Nowlin  v.  JSloom,  Breese,  98 ;  Snyder  v.  Lafromloisey  Breese, 
268 ;  8  Cowen. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  anaction  of  trespass  brought  by  Hull  against 
[*333]  *Blaisdell  and  Smith,  for  taking  and  carrying  away  the 
plaintiff's  goods.  The  declaration  states,  in  substance, 
that  Blaisdeil  on  the  second  day  of  July,  1832,  was  a  constable 
of  the  county  of  St.  Clair,  and  Smith  a  justice  of  the  peace, 
and  on  the  day  and  year  aforesaid,  said  Smith  unlawfully  issued 
an  attachment  in  favor  of  one  John  White,  against  the  goods  and 
chattels  of  the  plaintiff,  for  a  greater  debt  than  thirty  dollars, 
to  wit,  for  thirty-eight  dollars  twelve  and  a  half  cents.  That 
the  attachment  came  to  the  hands  of  Blaisdeil,  as  constable  as 

CITED  :  Magistrate  liable  in  trespass.  27  111.  470.  When  variance  not  ma- 
terial. 80  Id.  519;  13  Id.  670;  108  111.  644. 

•  Pleading — Variance — When  not  material.  In  connection  with  the 
above  case  of  Hull  v.  Blaisdeil,  see  Leidig  v.  Rawson,  ante  272;  Prather  v. 
Vineyard,  4  Gilm.  40;  Plumleigh  v.  Cook,  13  111.  669;  Phelan  v.  Andrews, 
52  111.  486;  Stevisqn  v.  Earnest,  80  111.  513;  Beaver  v.  Blanker,  94  111.  175; 
Chimquy  v.  Catholic  Bishop,  41  111.  48;  Heacock  v.  Lubukee,  108  111.  641. 

342 


JUNE  TEEM,  1837.  333 

Hullr.  Blaisdelletal. 

aforesaid,  and  the  said  Blaisdell  and  Smith  did  by  means  of  the 
said  process  unlawfully,  and  with  force  and  arms,  take,  seize  and 
carry  away,  two  hundred  bushels  of  lime  and  other  property,  all 
being  the  proper  goods  and  chattels  of  the  plaintiff. 

The  defendants  pleaded  the  general  issue.  On  the  trial,  the 
plaintiff,  to  sustain  his  cause  of  action,  gave  in  evidence  to  the 
jury  the  following  writing  (produced  by  the  defendants  upon 
notice  to  produce  the  papers  described  in  the  declaration), 
which  was  read  to  the  jury  without  objection  ;  and  is  in  the 
words  and  figures  following,  to  wit  :  "  The  People  of  the  State 
of  Illinois,  To  any  constable  of  Saint  Clair  county,  Greeting. 
Whereas  John  White  hath  complained  on  oath,  before  me, 
John  C.  Smith,  an  acting  justice  of  the  peace  for  said  county, 
that  one  Abijah  Hull  is  justly  indebted  to  him  in  the  sum  of 
$37.50,  and  has  absconded,  so  that  the  ordinary  process  of  law 
can  not  be  served  upon  him,  and  the  said  John  White  having 
given  bond  and  security  according  to  the  directions  of  the  act 
in  such  case  made  and  provided  ;  —  We  therefore  command 
you,  that  you  attach  so  much  of  the  personal  estate  of  the  said 
Abijah  Hull,  if  to  be  found  in  your  county,  as  shall  be  of 
value  sufficient  to  satisfy  the  said  debt  and  costs,  according  to 
the  complaint;  and  such  estate,  so  attached,  in  your  hands  to 
secure  and  provide,  so  that  the  same  may  be  liable  to  further 
proceedings  thereupon,  according  to  law,  at  a  Court  to  be  holden 
by  me  on  the  10th  day  of  July  instant,  at  the  town  of  Illinois, 
in  said  county  of  St.  Clair,  and  have  you  then  and  there  this 
writ.  Given  under  my  hand  and  seal,  this  2d  day  of  July, 
1832.  John  C.  Smith,  J.  P.  St.  C.  C." 

On  the  back  of  said  paper  is  indorsed  the  following,  to  wit  : 
"JohnWhtieA  Attachment  debt,  $37.50 


«••    i77 

Atnjah  Hull,  ) 

"this  attachment  came  to  my  hands  the  2d  July,  at  2  o'clock 
p.  M.  Served  this  attachment  by  levying  on  200  barrels  of 
lime,  and  about  500  feet  of  plank.  July  3,  1832.  A.  Blais- 
dell, Constable. 

Serving  attachment,  $1.00 

A.  B.  Const." 

*On  the  trialjthe  plaintiff's  counsel  moved  for  the  fol-  [*334] 
lowing  instructions,  which  were  refused,  to  wit  :  1st. 
That  the  attachment  exhibited  in  evidence  to  the  jury,  of 
John  White  v.  Alijah  Hull,  is  competent  evidence  to  prove 
the  matters  charged  in  the  plaintiff's  declaration.  2d.  That  the 
gist  of  the  offense  consists  in  the  taking  by  unlawful  process, 
and  the  variance  in  the  description  is  immaterial.  The  follow- 
ing instructions,  asked  for  by  the  plaintiff,  were  given,  to  wit: 


343 


334:  YANDALIA. 


Hull  v.  Blaisdell  et  al. 


That  the  signature  of  the  justice,  and  the  return  of  the  acts  of 
the  officer  upon  the  back  of  the  attachment,  prove  themselves. 

Instructions  were  also  asked  by  the  defendant's  counsel  and 
given,  but  it  is  unnecessary  to  state  them,  for  if  the  instruction's 
praved  for  by  the  plaintiff  and  refused,  ought  to  have  been 
given,  then  the  instructions  asked  for  by  defendant  should  have 
been  refused. 

Ought  the  instructions  asked  for  by  the  plaintiff  and  refused 
by  the  Court,  to  have  been  given  ?  By  the  6th  section  of  the 
"Act  to  amend  an  act  concerning  attachments"  justices  of  the 
peace  are  authorized  to  issue  attachments  on  any  sum  under 
$30.  The  attachment  issued  in  this  case  being  for  a  sum  over 
$30,  was  clearly  unwarranted  by  Jaw,  and  in  issuing  it,  the  jus- 
tice, and  in  serving  it,  the  constable  who  acted  under  it,  be- 
came trespassers.  Was  there  then  such  a  variance  between 
the  evidence  offered  and  the  declaration,  as  to  have  justified 
the  court  in  rejecting  the  evidence,  if  its  reception  had  been 
opposed? 

The  rule  of  law  applicable  to  variances,  as  laid  down  in  the 
case  of  Leidig  v.  ttawson  (ante  272)  is,  "  That  whenever  an 
instrument  of  writing  or  a  record  is  not  the  foundation  of  the 
action,  a  variance  is  not  material,  unless  the  discrepancy  is  so 
great  as  to  amount  to  a  strong  probability  that  it  can  not  be  the 
instrument  or  record  described."  The  gist  of  this  action  con- 
sisted in  issuing  an  attachment  for  any  sum  over  $30,  however 
great  or  small  that  excess  might  be.  The  issuing  of  the  attach- 
ment for  a  sum  over  $30,  and  the  subsequent  execution  of  the 
illegal  process,  are  the  acts  that  rendered  the  defendants  liable 
to  an  action ;  consequently  the  variance  was  immaterial ;  and 
the  only  inquiry  ought  to  have  been,  was  the  attachment  given 
in  evidence  the  illegal  attachment  complained  of  ?%  On  this 
point  there  can  be  no  doubt.  In  addition  to  its  exact  conformity, 
in  most  particulars,  to  the  one  described  in  the  declaration,  the 
defendants  produced  it  on  the  trial,  under  a  notice  to  produce 
the  paper  described  in  the  declaration.  Would  the  defendants 
have  produced  this  paper  under  such  a  notice,  and  suffered  it 
to  be  read  to  the  jury  without  objection,  if  it  had  not  been 
the  paper  described  in  the  declaration  ?  We  think  not.  The 
refusal,  therefore,  of  the  Court,  to  give  the  instruc- 
[*335]  tions  asked  for,  was  *erroneous.  The  judgment  must 
be  reversed  with  costs,  and  the  cause  remanded  with 
directions  to  award  a  venire  de  novo. 

Judgment  reversed. 

Note.  Since  the  cause  of  action  accrued  in  the  foregoing  cause,  acts  have 
been  passed  by  the  General  Assembly  giving  to  justices  of  the  peace  juris- 
diction of  causes  by  attachment,  where  the  amount  does  not  exceed  $50. 
R.  L.  84;  Gale's  Stilt.  74;  Acts  of  1836-7, 12. 

344 


JUNE  TEEM,  1837.  335 

Garrett  v.  Wiggins. 


MOSES  GARRETT,  plaintiff  in  error,  v.  JOHN  DOE,  ex 
dem.  SAMUEL  WIGGINS,  defendant  in  error. 

Error  to  Franklin. 

STATUTES — WHEN  RETROSPECTIVE. — Courts  will  not  give  to  a  law  a  retro- 
spective operation,  even  where  they  might  do  so  without  a  violation  of  the  par- 
amount law  of  the  Constitution,  unless  the  intention  of  the  legislature  be 
clearly  expressed  in  favor  of  such  retrospective  operation.11 

TAX  SALE — CONSTRUCTION. — Where  land  was  sold  for  taxes  under  the 
law  of  1827,  and  a  deed  was  made  to  the  purchaser  in  pursuance  of  such  sale 
in  1829,  after  the  repeal  of  the  law  under  which  the  sale  was  had,  and  after 
the  passage  of  a  new  act  upon  the  same  subject:  Held  that  the  law  of  1827 
must  govern  as  to  the  effect  of  the  deed. 

SAME — TAX  TITLE. — It  is  a  settled  principle  of  the  common  law,  that  a 
party  claiming  title  under  a  summary  or  extraordinary  proceeding,  must 
show  that  all  the  indispensable  preliminaries  to  a  valid  sale  which  the  law 
has  prescribed  have  been  complied  with. 

A  party  claiming  under  a  deed  given  upon  a  sale  of  lands  for  taxes  by  the 
auditor,  must  show  that  all  the  requirements  of  the  law  in  relation  to  the  sale 
of  lands  for  taxes,  have  been  complied  with. 

THIS  cause  was  heard  in  the  Circuit  Court  of  Franklin  coun- 
ty, at  the  April  term,  1834,  before  the  Hon.  Thomas  C. 
Browne  and  a  jury,  and  a  verdict  rendered  against  the  defend- 
ant in  the  Court  below,  the  present  plaintiff  in  error. 

WALTER  B.  SOATES,  for  the  plaintiff  in  error,  cited  the  fol- 
lowing authorities : 

Statute  of  1827  (R.  L.  of  1827)  §§  1,  2,  3, 4, 7,  8,  9, 10, 12, 13, 

CITED  :  Tax  title.  58  111.  138;  18  111.  242;  4  Scam.  142.  Statutes— Retro- 
spective operation  of.  79  111.  107;  62  111.  480.  Statute— Strict  compliance  with. 
56  111.  124;  11  111.411,  438.  Admissibility  of  auditor's  deed.  1  Gilm.  304, 
305.  Rights  of  judgment  debtor.  17  111.  50;  112  111.  566. 

a  Statutes — Construction — When  retrospective.  Statutes  ore  construed  as 
retrospective  only  when  it  clearly  appears  that  such  was  the  legislative  in- 
tent. Bruce  v.  Schuyler,  4  Gilm.  221;  Thompson  v.  Alexander,  11  111.  54; 
Marsh  v.  Chesnut,  14  111.  223;  Hatcher  v.  T.,  W.  &  W.  Ry.  Co.,  62  111.  477; 
In  re  Tuller,  79  111.  99;  Hyman  ».  Bayne,  83  111.  256;  ,U.  S.  Mortgage  Co. 
v.  Gross,  93  111.  483;  People?'.  Thatcher,  95  111.  109;  People  v.  Peacock,  98 
111.172;  State  v.  Atwood,  11  Wis.  422;  Price  v.  Mott,  52  Pa.  St.  315; 
Oakland  v.  Whipple,  44  Gal.  303;  Somerset  v.  Dighton,  12  Mass.  383; 
Dash  v.  Van  Kleeck,  7  Johns.  477;  Taylor  r.  State,  31  Ala.  383:  Jackson  v. 
VanZandt,  12  Johns.  169;  Hackley  r.  Sprague,  10  Wend.  114;  N.  Y.,  etc. 
R.  Co.  v.  Van  Horn,  57  N.  Y.  473;  Goilfotel  v.  Mayor,  87  N.  Y.  441;  Com- 
monwealth v.  Sudbury,  106  Mass.  268. 

This  rule  does  not  always  apply  to  statutes  affecting  remedies.  Shultz  r . 
Third  Ave.  R.  Co.,  17  Weekly  Dig.  207;  Pells  v.  Supervisors  of  Ulster,  65 
N.  Y.  300. 

The  legislature  can  not  gire  statutes  a  retrospertire  effect  in  violation  of 
vested  rights.  Dobbins  v.  First  Ntl.  Bank,  112  111.  553. 

845 


;,,.,  VANDALIA. 


Garrett  v.  Wiggins. 


23,  24,  25,  28;  6  Wheat.  119;  2  Peters'  Cond.  K.  151,  154, 
171-2;  3  Peters' Cond.  R  28,  271,  275;  4  Cranch,  403;  2 
Am.  Dig.  430,  431,  508 ;  3  Am.  Dig.  488-9 ;  Kunnington's 
Eject.  182 ;  1  Johns.  Dig.  84-5,  §§  59,  60. 

H.  EDDY  and  "W.  J.  GATEWOOD,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  ejectment  brought  by  Wiggins  against 
Garrett,  to  recover  the  possession  of  a  tract  of  land  which  was 
sold  to  him  by  the  Auditor  of  Public  Accounts,  as  the  prop- 
erty of  Garrett  for  the  non-payment  of  taxes.  On 
[*336]  the  trial,  Wiggins  *adduced  in  support  of  his  title  a 
deed  from  the  auditor,  executed  in  the  form  pre- 
scribed by  law,  and  upon  this  evidence  of  title .  submitted  his 
cause.  The  defendant's  counsel  then  moved  the  Court  for 
several  instructions  as  to  the  law  applicable  to  the  case,  and 
the  insufficiency  of  the  plaintiff's  evidence  of  title;  all  of 
which  the  Court  refused,  and  upon  motion  of  the  plaintiff's 
counsel,  gave  instructions  directly  opposite  to  those  asked  for 
by  the  defendant,  as  follows : 

1st.  That  the  statute  in  force  at  the  time  of  the  execution 
of  the  auditor's  deed,  and  not  that  which  was  in  force  at  the 
time  of  sale,  was  the  one  applicable  to  the  case. 

2d.  That  the  auditor's  deed  is  evidence  of  the  regularity 
and  legality  of  the  sale,  and  in  the  absence  of  proof  of  any 
other  title,  the  jury  must  find  for  the  plaintiff,  Wiggins. 

These  instructions  were  excepted  toby  the  defendant  on  the 
trial,  and  are  now  assigned  for  error.  Some  other  errors  were 
also  assigned,  which  it  is  considered  unnecessary  to  notice.  In 
order  to  understand  the  effect  of  the  first  branch  of  the  in- 
structions given  by  the  Court,  it  is  necessary  to  recur  to  the 
order  of  time  in  which  the  different  acts  connected  with  the 
plaintiff's  title  were  performed,  and  also  to  the  different  legis- 
lative provisions  upon  the  subject. 

The  sale  to  Wiggins  was  made  on  the  17th  day  of  January, 
1829,  but  the  deed  was  not  executed  till  1831,  after  the  rev- 
enue law  of  1829,  (E.  L.  523  ;  Gale's  Stat.  569,)  which  had  re- 
pealed that  of  1827,  had  gone  into  operation.  This  last  stat- 
ute is  essentially  different  from  the  preceding  one,  upon  the 
same  subject,  and  it  is  contended,  dispenses  with  proof,  on  the 
part  of  the  purchaser  at  an  auditor's  sale,  of  the  pre-requi- 
eites  of  the  statute.  But  we  are  not  called  upon  in  this  case  to 
give  a  construction  to  that  statute,  as  I  am  clearly  of  opinion 
that  it  is  not  applicable  to  this  case.  Without  the  clearly  ex- 
pressed intention  of  the  legislature,  courts  will  not  give  to  a  law 

346 


JUNE   TEEM,  1837.  336 

Garrett  v.  Wiggins. 

a  retrospective  operation,  even  where  they  might  do  so  without 
a  violation  of  the  paramount  law  of  the  Constitution ;  but  no 
such  intention  can  be  collected  .from  the  law  of  1829.  Its  lan- 
guage and  objects  are  prospective.  It  relates  only  to  contracts 
and  proceedings  under  its  provisions,  and  can  not  by  a  fair 
construction  be  so  extended,  as  to  interfere  with,  or  impair, 
prior  contracts,  rights,  or  obligations.  The  fact  of  the  deeds 
not  having  been  executed  till  after  the  statute  of  1829  went 
into  operation,  has  no  influence  upon  the  character  of  the 
transaction.  The  statute  under  which  the  eale  was  made 
gave  to  the  purchaser,  at  his  option,  the  privilege  of  demand- 
ing from  the  auditor  a  deed  immediately,  or  of  taking  a  cer- 
tificate of  purchase,  and  waiting  for  his  deed  till  the  expi- 
ration of  two  years.  In  either  case  the  form  of  the  deed  was 
the  same  ;  either  would  contain  the  same  reservation 
in  favor  of  the  right  of  *redemption,  which  by  the  law  [*337] 
was  two  years,  where  the  owner  was  of  age,  and  in  the 
case  of  an  infant,  one  year  after  he  became  of  age.  If  the 
purchaser,  Wiggins,  had  demanded  and  received  his  deed  at 
the  time  of  sale,  I  presume  it  would  not  be  contended  that  a 
subsequent  law  would  change  its  effect  and  operation.  Upon 
what  principle,  then,  can  his  situation  be  different  from  that 
of  other  individuals  who  purchased  at  the  same  time  and 
upon  the  same  terms,  but  whose  deeds  were  executed  earlier. 
They  certainly  are  all  upon  the  same  footing.  The  auditor's 
sale  constituted  a  contract  between  the  State  and  the  purchas- 
er, which,  in  connection  with  the  then  existing  law,  deter- 
mined the  rights  and  obligations  of  the  parties.  The  certifi- 
cate of  purchase  in  the  one  instance,  and  the  deed  in  the 
other,  are  but  the  evidence  of  the  contract,  and  that  must  be 
construed  with  reference  to  the  law  in  force  at  the  time  it 
was  entered  into.  A  different  rule  would  substitute  the  vary- 
S'm  will  of  after  legislatures,  for  the  intention  andstipu^tions 
of  contracting  parties.  The  statute  of  1827,  then,  being  the 
law  applicable  to  this  case,  its  construction  presents  the  next 
point  for  consideration.  It  is  a  settled  principle  of  the  com- 
mon law,  that  a  party  claiming  title  under  a  summary  and  ex- 
traordinary proceeding,  must  show  that  all  the  indispensable 
preliminaries  to  a  valid  sale,  which  the  law  has  prescribed,  in 
order  to  give  notice  to  those  interested,  and  to  guard  agamst 
fraud,  have  been  complied  with,  or  the  conveyance  to  him 
will  pass  no  title.  The  auditor's  authority  to  make  the  sale 
under  which  the  plaintiff  claims  title,  is  one  of  this  c^ss.  It 
is  therefore  incumbent  upon  him  to  prove  that  all  the  pre- 
requisites to  a  legaj  exercise  of  that  power  have  preceded  it, 
or  he  must  show"  that  the  statute  under  which  the  auditor 

847 


337  VANDALIA. 


Garrett  r.  Wiggins. 


acted  has  dispensed  with  the  proof  of  those  pro-requisites,  or 
inferred  them  from  the  deed  of  conveyance.  In  examining 
the  law  conferring  the  authority,  and  prescribing  the  manner 
of  selling  the  land  of  non-residents  for  the  non-payment  of  taxes, 
it  will  be  perceived  that  the  tax  upon  land  is  required  to  be  paid 
by  the  first  day  of  August  annually,  and  that  the  auditor  is 
required,  as  soon  thereafter  as  practicable,  to  make  out  and 
publish  a  descriptive  list  of  all  lands  upon  which  taxes  are 
due,  after  which  he  is  required,  at  the  time  and  place  specified, 
to  "sell  all  the  lands  advertised,  as  aforesaid,  on  which  the 
taxes  and  costs  shall  remain  unpaid."  The  purchaser  at  this 
sale  shall,  at  his  option,  be  entitled  to  receive  a  certificate  of 
purchase  or  a  deed  ;  "  which  deed  (the  law  says)  shall  vest  in 
the  purchaser  a  perfect  title,  unless  the  land  shall  be  redeemed 
according  to  law,  or  the  former  owner  shall  show  that  the 
taxes,  for  which  it  was  sold,  had  been  paid  as  required  by 
law,  or  that  the  land  was  not  legally  subject  to  taxation." 
This  act  will  not,  by  any  fair  construction,  warrant  the  opin- 
ion that  the  auditor,  selling  land  without  authority, 
[*338]  could,  by  his  Conveyance,  transfer  the  title  of  the 
rightful  owner.  It  is  admitted  that  it  is  competent 
for  the  law  making  power  to  change  the  rule  of  evidence,  and 
de^are,  by  an  arbitrary  rule,  that  from  the  proof  of  certain 
facts  others  shall  be  presumed.  This  statute  has  done  so  to 
some  extent.  Under  it  several  preliminary  facts  to  a  legal 
sale  by  the  auditor  are  inferred  from  his  conveyance,  and  the 
responsibility  of  proof  shifted  from  the  purchaser  to  the  origi- 
nal owner.  But  the  publication  of  notice  of  sale  by  the  au- 
ditor, as  required  by  law,  is  not  one  of  those  facts  inferred 
from  his  deed,  nor  is  the  proof  thereof  thrown  upon  the  former 
owner.  The  duty  of  the  auditor  to  publish  this  notice  is  im- 
perative ;  his  authority  to  sell  is  limited  by  the  express  words 
of  the  law  to  "  the  land  advertised  as  aforesaid,"  and  as  the 
rule  of  law  which  required  the  purchaser  to  show  the  per- 
formance of  this  pre-requisite  was  not  changed  by  the  act  of 
1827,  he  should  therefore  have  adduced  evidence  to  that 
effect.  "Without  proof  of  this  fact,  the  auditor's  deed  was  not 
evidence  of  the  regularity  and  legality  of  the  sale,  and  conse- 
quently conveyed  no  tife  to  the  purchaser,  Wiggins,  who  was 
the  plaintiff  below. 

The  decision  of  the  Circuit  Court  is  therefore  reversed  with 
costs,  the  cause  remanded  to  that  Court  with  directions  for  a 
venire  de  novo,  and  that  the  cause  be  tried  conformably  to  this 
opinion. 

Judgment  reversed. 

848 


JUNE  TEEM,  183T.  338 

Pickering  v.  Orange. 


WILLIAM  PICKERING,  plaintiff  in  error,  v.  DANIEL 
OEANGE,  defendant  in  error. 

Error  to  Edwards. 

DOGS — LIABILITY  OF  OWNERS. — The  owner  of  a  dog  of  a  mischievous 
and  ferocious  disposition,  if  he  permit  it  to  go  at  large,  knowing  that  it  has 
done  mischief  in  the  destruction  of  one  kind  of  animals,  will  be  liable  for 
the  destruction  of  other  animals  by  the  same  dog,  though  of  a  different 
species." 

THIS  cause  was  tried  at  the  March  term,  1837,  of  the  Ed- 
wards Circuit  Court,  before  the  Hon.  Justin  Harlan  and  a 
jury,  and  a  verdict  rendered  for  the  defendant. 

O.  B.  FICKLIN,  for  the  plaintiff  in  error. 
E.  B.  WEBB,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  on  the  case  brought  by  Pickering,  to  re- 
cover damages  for  the  destruction  of  a  certain  num- 
ber of  sheep  *and  lambs,  alleged  to  have  been  killed     [*339] 
by  the  dogs  of  Orange.    The  declaration  contains  three 
counts.    The  first  alleges  that  the  dogs  were  accustomed  to  hunt, 
chase,  bite,  worry  and  kill  sheep  and  lambs,  the  defendant  well 
knowing  their  propensities  and  habits.     The  second  sets  forth 
the  killing  of  the  sheep  and  lambs  ;  that  the  dogs  were  of  a 
mischievous  and  ferocious  disposition,  and  accustomed  to  bite, 
hunt,  chase,  worry  and  kill  sheep,  the  defendant  well  know- 
ing, etc.     The  third  count  is  the  same,  with  the  additional 
allegation,  that  the  dogs  were  also  accustomed  to  kill  hogs, 
cattle  and  other  live  stock,  in  addition  to  sheep. 

Issue  was  joined  on  the  first  and  second  counts,  and  a 
demurrer  interposed  to  the  third.  The  Circuit  Court  sus- 
tained the  demurrer  to  the  third  count,  and  gave  judgment 
for  costs.  On  the  trial  of  the  cause,  the  plaintiff  offered  to 
produce  evidence  that  the  dogs  of  the  defendant  were  of  a 
ferocious  arid  mischievous  disposition,  and  accustomed  to  bite 
and  worry  men  and  hogs,  which  being  objected  to  by  defend- 

*Dog*—Linln'Jifi/  of  owner  for  1refpn**es  of.  See  Starr  &  C.  III. 
Stat  ,  Oh.  8,  Sees.  36, 87.  See,  also,  Brent  r.Kimball,  60  111.  211  ;  Worm- 
ley  r.  Greirjr.  65  III.  251;  Kek'htlinjrer  r.  Kgan.  75  111.  141;  Mareau  r.  Van- 
atta,  88  III.  132;  Flunsburg  r.  Basin,  3  Bnviw.  531;  Moss  v.  Pardndge,  9 
Bradw.  490. 

849 


339  VANDALIA. 


Pickering  v.  Orange. 


ant's  counsel  was  rejected  by  the  Court,  to  which  decision  the 
plaintiff  excepted.  The  errors  assigned  are  that  the  Circuit 
Court  erred  in  sustaining  the  demurrer,  and  in  rejecting  the 
evidence  offered.  Both  errors  are  well  assigned.  The  third 
count  is  sufficient  in  every  particular.  The  grounds  of  action, 
in  cases  of  the  present  kind,  are  the  vicious  and  dangerous 
habits  and  propensities  of  the  animals  kept  by  the  owner,  and 
his  negligence  in  not  taking  proper  care  to  prevent  the  com- 
mission of  injury  by  them,  after  a  knowledge  of  their  pro- 
pensities and  habits.  This  has  been  assigned  in  the  counts,  as 
well  as  the  particular  acts  done  ;  and  the  count  is  not  vitiated 
by  the  averment  that  the  dogs  were  accustomed  to  attack  and 
kill  other  animals  than  those  alleged  to  have  been  killed. 
The  evidence  offered  was  competent.  It  tended  to  prove  the 
issue,  and  was  therefore  admissible ;  and  it  ought  to  have  gone 
to  the  jury.  Besides,  the  ground  of  the  action  being  the 
ferocious  and  mischievous  habits  of  the  dogs  of  the  defendant, 
and  his  knowledge  thereof,  and  want  of  care  in  not  restrain- 
ing them,  but  permitting  them  to  go  at  large,  it  was  compe- 
tent for  the  plaintiff  to  show  their  vicious  habits  by  proof  of 
the  attack  by  them  on  other  animals  than  the  particular  ones 
named  in  the  declaration.  The  rule  of  evidence  on  this  point 
is  well  settled.  It  has  been  held  that  it  may  be  shown  that  if 
the  animal  had  once  done  mischief  in  the  destruction  of  one 
kind  of  animals,  and  the  owner  permit  it  to  go  at  large,  he 
will  be  held  answerable  for  other  injuries  afterward  done  by 
the  same  animal,  though  of  a  different  kind  from  that  before 
done,  if  he  knew  of  the  commission  of  the  previous  injury. 
(Ld.  Eaym.  1 10 ;  2  Stark.  Ev.  533,  and  cases  there  cited.) 
The  judgment  of  the  Circuit  Court  is  reversed,  with  the 

costs  attendant  on  the  judgment  of  demurrer   in  the 
[*340]     Circuit  Court ;  and  *full  costs  in  this  Court ;  and  the 

cause   remanded  with  directions  to  award   a   venire 
de  now. 

Judgment  reversed. 

S50 


JUNE  TERM,  1837.  340 


Arenz  v.  Reihle  et  al. 


FKANCIS  AKENZ,  appellant,   v.  WILLIAM  REIHLE  and 
JOSEPH  BAINS,  appellees. 

Appeal  from  Morgan. 

TRIAL  BY  COXTRT.— BILL  OF  EXCEPTIONS — Where  the  Court  below  hear  the 
testimony  on  both  sides,  a  bill  of  exceptions  will  not  lie  to  the  judgment  of 
the  Court,  though  the  parties  agree  that  there  shall  be  "  the  same  right  to 
except  to  any  opinion  of  the  Court  during  the  progress  of  the  trial  and  upon 
final  judgment,  as  though  the  cause  were  tried  before  a  jury,  and  such 
exception  shall  be  considered  in  the  Supreme  Court,  as  though  the  cause 
were  tried  by  a  jury." 

ERROR — A  party  can  not  assign  for  error  an  erroneous  decision  which  does 
not  prejudice  his  rights." 

ATTACHMENT  —  GARNISHMENT. — Where  an  .attachment  was  levied  on 
goods  in  the  possession  of  S.,  and  upon  a  trial  of  the  right  of  property 
between  S.  and  the  attaching  creditors  the  property  was  found  to  be 
subject  to  the  _  attachment,  and  S.  gave  security  to  the  sheriff  who  attached 
them,  for  their  return,  but  subsequently  put  them  into  the  possession  of  A. 
who  sold  them,  and  who  was  thereupon  summoned  as  garnishee  in  the  at- 
tachment suit:  Held,  that  in  determining  whether  A.  was  liable  as  gar- 
nishee, the  record  of  the  trial  of  the  right  of  property  between  the  creditors 
in  the  attachment  and  S.  was  properly  admitted,  and  that  it  was  conclusive 
as  to  the  ownership  of  the  property. 

JUDGMENT — EFFECT. — A  judgment  binds  parties  and  privies. 

Semble,  that  a  trial  of  the  right  of  property,  under  the  statute,  is  conclu- 
sive between  the  parties  and  privies. 

THIS  cause  was  heard  at  the  October  term,  1835,  of  the 
Morgan  Circuit  Court,  before  the  Hon.  Thomas  Ford,  with- 
out the  intervention  of  a  jury.  Judgment  was  rendered  for 
the  appellees,  for  $1,782.18,  from  which  Arenz  appealed  to 
this  Court. 

CITED:  Right  of  property,  evidence  of .  28111.  121.  Error  without  preju- 
dice, what  effect,  52  111.  156;  who  can  not  assign  error.  8  Gil.  81;  when 
error  will  not  reverse.  4  Gil.  151 ;  98  111.  280.  Judgment  against  claimant, 
evidence  of  what,  12  111.  389. 

a  Appeal  and  error — Errors — When  not  assignable. 

A  party  can  not  assign  for  error,  erroneous  decisions  which  do  not 
prejudice  his  rights.  Schlencker  r.  Risle}',  3  Scam.  483;  Thorn  v.  Watson, 
5 Gilm.  26;  Vansant  v.  Allmon,  23  111.  31;  Meyer  v.  Pfeiffer,  50  111.  485; 
Kennedy  v.  Kennedy,  66  111.  190;  Havighorct  v.  Limlberg,  67  111.  463; 
Smith  v.  Hickman,  68  111.  314;  Witrgins  Ferry  Co.  «.  Higgins,  72  111.  517; 
Sterling  Bridge  Co.  v.  Baker,  75  111.  139;  Hubner  v.  Feize,  90  111.  208; 
Neodhara  r.  People,  98  111.  275. 

The  admission  of  improper  eridence  is  not  a  cause  for  reversa I  unless  the 
party  complaining  was  injured  by  it.  P.  A.  &  D.  By.  Co.  v.  Sawyer,  71  111. 
£62;  Chaiuberlin  r.  White,  79  111.  549;  Howe  Machine  Co.  v.  Rosine,  87  111. 
'05;  Trogdon  r.  Murphy,  85  111.  119:  Wilhemin  r.  Dunn,  93  111.  511;  Kir- 
-y  r.  Wilson,  98  111.  240;  Fast  v.  McPherfon,  98  111.  496;  Chicago,  etc.  R. 
'fo.  r.  Rung,  1C4111.  641;  Thajer  v.  Allison,  109  111.  180. 

851 


340  VANDALIA. 


Arcnz  v.  Reihle  et  al. 


C.  WALKER  and  J.  B.  THOMAS,  for  the  appellant. 
WM.  THOMAS,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
The  record  in  this  cause  being  very  voluminous,  and  pre- 
senting a  great  variety  of  proceedings  and  decisions  that  this 
Court  is  not  called  upon  to  review,  only  so  much  of  the  record 
will  be  stated  as  is  necessary  to  present  the  points  of  our  decis- 
ion. The  record  shows  that  two  attachments  issued  at  differ- 
ent times,  from  the  Morgan  Circuit  Court,  in  favor  of 
Eeihle  and  Bains  against  one  Samuel  P.  Judson,  and  that  in 
each  case  Francis  Arenz  was  summoned  as  a  garnishee.  .Dur- 
ing the  progress  of  the  proceedings  on  the  first  attachment, 
several  decisions  were  made,  to  which  the  three  first  assign- 
ments of  error  apply.  At  the  October  term,  1835,  of 
[*341]  the  Morgan  Circuit  Court,  it  was  agreed  between  *the 
parties,  that  both  the  cases  against  Arenz,  as  gar- 
nishee of  Samuel  P.  Judson,  should  be  consolidated  ;  and  that 
thereafter  the  proceedings  should  be  carried  on  as  if  there  had 
been  but  one  suit.  It  was  further  agreed  between  the  parties, 
that  both  matters  of  law  and  fact  should  be  tried  by  the  Court ; 
and  that  the  parties  should  have  the  same  right  to  except  to 
any  opinion  of  the  Court  during  the  progress  of  the  trial,  and 
uj.on  final  judgment,  as  though  the  cause  were  tried  before  a 
jury ;  and  that  such  exceptions  should  be  considered  in  the 
Supreme  Court,  as  though  the  cause  was  tried  by  a  jury. 

On  the  final  trial  of  the  cause,  pursuant  to  this  agreement  of 
the  parties,  the  Court  below,  after  hearing  the  testimony  ad- 
duced, decided  that,  in  the  first  cause  against  Arenz,  as  gar- 
nishee, the  plaintiffs  below  were  not  entitled  to  recover,  and  gave 
judgment  in  favor  of  Arenz  for  costs;  and  in  the  second  cause, 
that  the  plaintiffs  were  entitled  to  recover  seventeen  hundred 
and  eighty -two  dollars  and  eighteen  cents,  and  accordingly  gave 
judgment  against  Arenz,  as  garnishee,  for  that  amount.  During 
the  progress  of  the  trial,  Arenz  excepted  to  the  reading  of  a 
record  offered  in  evidence  by  the  plaintiffs,  which  was  a  record 
of  the  trial  of  the  right  of  property  that  was  had  between 

Trivial  objections  it-ill  not  be  considered  where  justice  has  been  done. 
White  r.  Stanbro,  73  111.  575;  Hoi  comb  r.  People,  79  111.  409;  Cavener  r. 
Shinkle,89Ill.  161;  Bent  r.  Coleman,  89111.  364;  Lowry  v.  Coster,  91  111.  182. 

Instructions  not  involved,  will  not  reverse  though  improper.  Rockford, 
etc.,  R.  Co.  r.  Rafferty,  73  111.  58;  Peoria,  etc.,  Ry.  Co.  v.  Peoria  &  Farm- 
injrton  Ry.  Co.,  105  111.  110. 

Improper  instructions  ichich  could  not  hare  misled  the  jury  will  not  bf 
ptittioient  to  reverse.  Lockwood  v.  Doaue,  107  111.  '235;  Pa.  Co.  v.  Stoelke, 
104  111.  201. 

302 


JUNE  TERM,  1837. 


Arenz  v.  Reihle  et  al. 


David  Sheldon,  who  claimed  the  property  levied  on  by  the  at- 
tachment of  Eeihle  and  Bains,  at  whose  suits  the  attachments 
issued.  The  goods  levied  on  by  these  attachments,  were,  sub- 
sequently to  their  being  thus  attached,  delivered  by  Judson  to 
Arenz,  which  delivery  was  the  ground  of  summoning  said 
Arenz  as  garni  shee.  The  Court  overruled  the  objection  to 
the  record,  and  permitted  it  to  be  read  in  evidence. 
The  errors  assigned  by  the  appellant,  are  : 

1.  The  Court  below  erred  in  permitting  appellees  to  file 
additional  interrogatories  to  appellant  as  garnishee. 

2.  The   Court   erred   in  progressing  to  give  a  judgment 
against  appellee,  after  having  discharged  him  and  rendered  a 
judgment  in  his  favor. 

3.  In  setting  aside  the  judgment  in  favor  of  appellant. 

4.  In  permitting  appellees  to  give  in  evidence  the  record 
stated  in  the  bill  of  exceptions. 

5.  In  rendering  judgment  for  appellees  on  the  evidence. 

In  relation  to  the  three  first  errors  assigned,  it  clearly  ap- 
pears that  Arenz  could  not  have  been  prejudiced  by  the  decis- 
ions referred  to,  because  the  Court  subsequently,  upon  a  final 
determination  of  the  first  cause,  to  which  those  decisions  re- 
late, decided  that  case  against  Reihle  and  Bains,  and  in  favor 
of  Arenz,  the  appellant  ;  he  can  not,  therefore,  if  those  decis- 
ions were  erroneous,  assign  them  for  error.  The  fourth  error 
relates  to  the  reading  in  evidence  of  the  record  of  the  trial  of  the 
right  of  property  between  David  Sheldon,  claimant, 
and  Reihle  and  Bains,  the  *attaching  creditors.  In  or-  [*342] 
der  to  understand  whether  the  record  was  properly 
received  in  evidence,  it  will  be  necessary  to  ascertain  the  ob- 
ject in  introducing  it.  It  appears  from  the  record  of  this  case, 
that  Reihle  and  Bains  levied  their  attachment  on  goods  in  the 
possession  of  Sheldon,  who  claimed  the  goods  as  his  own  prop- 
erty, and  in  order  to  retain  possession  of  them,  after  the  sheriff 
had  levied  on  them,  gave  security  to  the  sheriff  for  their  re- 
turn, in  case  a  return  should  be  adjudged.  He  subsequently 
delivered  the  same  goods  to  Arenz,  who  sold  them,  and  who 
was  in  consequence  thereof  summoned  as  garnishee,  on  the 
ground  that  the  goods  that  thus  came  to  his  possession,  were 
the  goods  of  Judson,  and  not  the  goods  of  Sheldon.  On  the 
trial  of  the  right  of  property  between  Sheldon  and  Reihle  and 
Bains,  the  jury  decided  (and  judgment  was  accordingly  given) 
that  the  goods  belonged  to  Judson.  They  were  consequently 
liable  to  the  attachment  of  Reihle  and  Bains.  The  object,  then, 
of  introducing  this  record  in  evidence,  was  to  establish  the 
fi  :'i  that  the  goods  which  Sheldon  had  delivered  to  Arenz, 

You  1-23  853 


342  YANDALIA. 


Grimsley  et  al.  ».  Klein. 


were  the  goods  of  Judson,  and  liable  to  be  applied  to  the  debts 
of  the  attaching  creditors. 

A  judgment  binds  parties  and  privies.  Consequently,  to 
establish  the  fact  that  the  goods  belonged  to  Judson,  and  not 
to  Sheldon,  the  record  was  not  only  the  best  evidence,  but 
conclusive  as  to  that  fact.  It  was  clearly  part  of  the  res  gesta 
to  ascertain  who  was  the  legal  owner  of  the  goods,  and  for 
that  purpose  the  record  was  properly  received  in  evidence. 
"Whether  Arena  was  to  be  affected  by  the  fraud  of  Judson, 
was  a  different  question,  and  must  depend  upon  evidence  alt- 
itude the  record.  The  record  proved  but  one  or  two  facts 
necessary  to  be  made  out,  so  as  to  make  Arenz  liable  to  ac- 
count for  the  goods  as  garnishee;  but  Avhether  such  other 
evidence  was  given  in  the  progress  of  the  cause  or  not,  does 
not  affect  the  propriety  of  receiving  the  record  in  evidence. 
The  record  was  therefore  good  evidence  as  far  as  it  went ; 
and  consequently  the  f ourth  assignment  of  error  can  not  be 
sustained. 

The  fifth  assignment,  that  the  Court  erred  in  rendering 
judgment  for  the  appellees,  can  not  be  sustained.  This  Court 
has  frequently  decided,  that  where  the  Court  below  hear  the 
testimony  on  both  sides,  a  bill  of  exceptions  does  not  lie  to  its 
judgment  on  that  testimony. 

The  decision  of  the  Circuit  Court  is  therefore  affirmed  with 
costs. 

Judgment  affirmed. 


[*343]     *WILLIAM  P.  GRIMSLEY  and  LAURTSON  LEV- 
ERING, appellants,  v.  JOSEPH  KLEIN,  appellee. 

Appeal  from  Sangamon. 

LANDLORD  AMD  TENANT — DISTRAINT — RIGHT  OP  PROPERTY.— A  land- 
lord who  has  distrained  upon  the  goods  of  his  tenant,  has  a  sufficient  inter- 
est in  them  to  enable  him  to  be  the  claimant  of  the  same  on  a  trial  of  the 
right  of  property,  if  they  are  subsequently  taken  in  execution. 

Semble,  That  any  person  having  an  interest  in  goods  and  chattels,  maybe 
a  claimant  of  the  same,  and  have  a  trial  of  the  right  of  property  between  the 
creditor  in  an  execution  levied  on  the  same,  and  himself. 

LEASE  AS  EVIDENCE. — A  lease  can  not  be  read  in  evidence,  except  be- 
tween the  parties  to  the  same,  without  proof  of  its  execution. 

THIS  cause  was  heard  in  the  Sangamon  Circuit  Court,  at  the 
October  term,  1836,  before  the  Hon.  Stephen  T.  Logan.  On 

CITED:  Rights  of  distrainor.    35  111.  303. 


JUNE  TERM,  1837.  343 

Grimsley  et  al.  v.   Klein. 

the  trial  a  motion  was  made  by  the  appellants,  to  dismiss  the 
cause  for  want  of  jurisdiction,  because  the  claimant  was  not 
the  absolute  owner  of  the  goods  levied  upon  by  virtue  of  their 
execution,  but  only  interested  in  the  same  as  a  landlord  who 
had  distrained  upon  the  goods  for  rent.  This  motion  was  over- 
ruled by  the  Court,  and  the  appellants  excepted.  Judgment 
was  rendered  for  the  appellee. 

J.  T.  STUART  and  M.  MCDONNELL,  for  the  appellants. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

This  was  a  trial  of  the  right  of  property.  During  the  prog- 
ress of  the  trial  in  the  Court  below,  several  exceptions  were 
taken  to  the  opinion  of  the  Court,  which  are  also  assigned  for 
error  here.  None  of  the  exceptions,  however,  are  considered 
well  taken,  except  that  which  relates  to  the  reading  in  evidence 
of  a  paper  purporting  to  be  a  lease  from  Klein,  the  appellee,  to 
one  Bailey. 

The  record  shows  that  Klein  as  the  landlord  of  Bailey, 
distrained  the  goods  of  Bailey  for  rent  due.  Those  goods 
were  afterward  taken  in  execution  at  the  suit  of  Grimsley  and 
Levering,,  and  upon  the  trial  of  the  right  of  property  between 
Klein,  the  landlord,  and  Grimsley  and  Levering,  the  execution 
creditors,  Klein,  in  order  to  prove  the  indebtedness  of  Bailey 
to  him  for  rent,  and  his  right  of  property  by  virtue  of  his  dis- 
tress, was  permitted  to  read  in  evidence,  without  any  proof 
of  its  execution,  a  lease  from  him  to  Bailey.  The  reading  of  the 
lease  was  objected  to  by  the  counsel  of  the  appellants,  but  the 
Court  overruled  the  objection,  and  after  hearing  all  the  testi- 
mony in  the  cause,  gave  judgment  in  favor  of  the  appellee. 

Upon  what  ground  the  introduction  of  the  lease  as  evidence 
'  in  the  case,  was  sought  to  be  excluded,  does  not  appear  from 
the  bill  of  exceptions;  but  inasmuch  as  it  professes 
to  contain  all  the  ^testimony  given  in  the  cause,  and  [*344] 
as  there  appears  to  have  been  no  proof  of  the  execu- 
tion of  the  lease,  we  are  bound  to  say  that  the  Court  erred  in 
overruling  the  motion  to  reject  it.  Under  the  statute  a  party 
to  a  written  agreement  upon  which  suit  is  brought,  or  which 
is  relied  uj:on  by  way  of  defense,  or  set-off,  can  not  deny  its 
execution  except  under  oath.  This  statutory  provision,  it  is 
clear,  is  not  applicable  to  the  present  case.  The  appellants' 
names  were  not  signed  to  the  lease,  nor  were  they  any  way 
privy  to  it;  they  therefore  had  a  right  to  require  proof  of  its 
execution;  and  the  ]  arty  offering  it  was  bound  to  make  such 
proof  before  it  could  be  legally  given  in  evidence.  For  this 
reason,  the  judgment  of  the  Court  below  is  reversed,  the  cause 

856 


344  VANDALIA. 


McConnell  v.  Wilcox. 


remanded  with  an  order  for  a  venire  de  novo,  and  that  the 
Court  proceed  according  to  this  opinion. 

Judgment  reversed. 


JOHN  JACKSON,  ex  dem.  MURRAY  MCDONNELL,  plaintiff 
in  error,  v.  DE  LA  FAYETTE  WILCOX,  defendant  in 
error. 

Error  to  Cook. 

PUBT.TC  LANDS—  DECISION  OF  REGISTER  AND  RECEIVED  OP  LAND  OF- 
FICE.—The  decision  of  the  Register  and  Receiver  of  a  Land  Office,  like  that 
<>f  all  other  tribunals  where  no  appeal  is  allowed,  is  final  and  conclusive, 
unon  all  the  facts  submitted  by  law.  to  their  examination  and  decision. 
Their  determination,  in  relation  to  the  right  of  pre-emption  to  a  tract  of 
hind  within  their  jurisdiction,  is  conclusive.8 

SAME— RESERVATION.— There  can  be  neither  a  reservation,  nor  an  appro- 
priation of  the  public  domain,  for  any  purpose  whatever,  without  express 
authority  of  law. 

Neither  the  President  nor  any  officer  of  the  government,  have  power  to 
'make  such  appropriation  or  reservation,  without  such  authority. 

SAME — FT.  DEARBORN  RESERVATION. — The  acts  of  the  Secretary  of  War, 
and  the  Commissioner  ot  the  General  Land  Office,  in  making  a  reservation  of 
Fort  Dearborn,  of  the  land  upon  which  it  was  situated,  were  unauthorized 
by  law,  and  void. 

NORTH  WESTERN  TERRITORY. — The  North  Western  Territory  was  ceded 
by  Virginia  to  the  United  States,  as  a  common  fund  for  the  use  and  benefit  of 
all  the  States,  according  to  their  usual  respective  proportions  in  the  general 
charge  and  expenditure,  and  should  be  faithfully  and  bonafide  disposed  of, 
for  tnat  purpose,  and  for  no  other  use  or  purpose  whatever. 

ASSENT  OF  STATE. — The  assent  of  a  State  legislature  is  necessary  _to  the 
erection,  by  the  United  States,  of  forts  and  permanent  garrisons  within  the 
Ixjundaries  of  a  State. 

CONSTRUCTION. — The  term  "appropriation,"  used  in  the  pre-emption  laws, 
means  an  application  of  lands  to  some  specific  use  or  purpose,  by  virtue  of 
l;iw,  and  not  by  any  other  power. 

EJECTMENT — PARTIES. — An  action  of  ejectment  can  be  maintained  against 
a  military  officer,  in  the  occupation  of  lands,  as  such. 

FRAUD — WHAT  AMOUNTS  TO. — To  constitute  actual  fraud  between  two  or 
more  persons,  to  the  prejudice  of  a  third,  contrivance  and  design  to  injure 
such  third  person  by  depriving  him  of  some  right,  or  otherwise  impairing 
it.  must  be  shown.  Actual  fraud  is  not  to  be  presumed,  but  ought  to  be 
proved  by  the  party  who  alleges  it;  and  if  the  motive  and  design  of  an  act 

CITKD:  Pre-emption  right.  41 TM.  466.  Presumption  as  to  motive.  75 
M.  147.  Decision  of  officers  under  pre-emption  laws  conclusive.  84Id.458; 
17  Id.  313;  54  Id.  51. 

Reversed:    Wilcox  t.  Jackson,  38  U.  S.  (13  Pet.),  4. 

»  Public  lands — Pre-emption — Hwcfar  decisions  of  officers  are  conclusive. 
The  decisions  of  the  proper  officers  of  the  Land  Department,  upon  the  tes- 
timony before  them,  in  proceedings  under  the  pre-emption  laws,  are  con- 
H-.wve  between  the  parties.  In  addition  to  the  above  case  of  McConnell  r. 
Wilcox,  see  Robbing  t.  Bunn,  54  111.  48;  Danforth  v.  Morrical,  84  111.  456; 
a* 


TEEM,  1837.  344 


McConnell  v.  Wilcox. 


maybe  traced  to  an  honest  and  legitimate  source  equally  as  to  a  corrupt  one, 
the  former  ought  to  be  preferred. 

Fraud  may  consist  in  making  a  false  representation  with  the  knowl- 
edge at  the  *time  that  it  is  false,  with  a  design  to  deceive  and  de-    [*345] 
fraud,  or  in  the  willful  concealment  of  the  truth,   for  a  similar 
purpose, 

PRE-EMPTION  LAWS.  —  The  pre-emption  laws  grant  to  the  pre-emptioner 
an  estate  in  land  upon  conditions,  which  becomes  absolute  upon  the  per- 
formance of  those  conditions. 

REMEDY.  —  The  law  of  the  State  where  the  land  is  situated,  is  to  govern 
both  as  to  the  form  of  the  remedy,  and  the  evidence  of  title. 

CONTRACTS  —  CONSTRUCTION.  —  In  regard  to  municipal  rights  and  obliga- 
tions the  government,  as  a  moral  being,  must  be,  in  contracting,  subject, 
in  the  absence  of  a  law  of  Congress  in  relation  thereto,  to  the  laws  of  the 
States,  and  the  same  principles  and  rules  of  interpretation  of  contracts  and 
acts  growing  out  of  them,  as  prevail  between  individuals,  must,  be  applica- 
ble to  it. 

The  character  of  a  general  law,  and  the  force,  effect,  and  application 
thereof,  are  not  to  be  determined  by  the  character  of  the  parties  to  the  ac- 
tion. If  the  act  of  the  legislature  making  a  register's  certificate  of  the  pur- 
chase of  a  tract  of  land  of  the  United  States,  evidence  of  title,  is  valid  as 
a  rule  of  decision  between  citizens  of  the  State  of  Illinois,  it  is  also  valid 
between  a  citizen  and  the  United  States, 

STATUTE  —  CONSTRUCTION.  —  The  act  of  the  legislature  of  the  State  of  Illi- 
nois, making  the  register's  certificate  of  the  purchase  of  land  at  the  Un  ited 
States  Land  Offices,  evidence  of  title,  does  not  conflict  with  the  ordinance  of 
1787. 

RESERVATION  —  ACT  OP  1830.  —  The  act  of  Congress  of  1830.  provided 
"  That  the  right  of  pre-emption  under  this  act  does  not  extend  to  any  lands 
which  are  reserved  from  sale  by  an  act  of  Congress,  or  by  order  of  the  Presi- 
dent, or  which  may  have  been  appropriated  for  any  purpose  whatever,  or 
for  the  use  of  the  United  States,  or  either  of  the  States  in  which  they  may 
be  situated.11  The  proclamation  of  the  President  advertising  the  lands  for 
sale,  stated  that  "  The  lands  reserved  by  law  for  the  use  of  schools,  and  for 
other  purposes,  will  be  excluded  from  sale."  The  Commissioner  of  the  Gen- 
eral Land  Office  wrote  a  letter  to  the  Secretary  of  War,  stating  that  the 
whole  of  Fractional  Section  10  was  reserved  for  military  purposes.  This 
letter  was  in  reply  to  a  request  from  the  Indian  agent  at  Chicago,  to  the 
Secretary  of  War,  requesting  that  Section  10  might  be  reserved  for  the 
Indian  Department,  and  by  the  latter  transmitted  to  the  Secretary  of  War. 
Hehl,  that  there  was  no  legal  reservation  of  Section  10.  Held,  also, 
that  under  a  fair  construction  of  the  aforesaid  act,  and  the  act  authorizing 
the  President  to  reserve  such  lands  as  he  may  deem  necessary  for  military 
posts;  lands  not  expressly  reserved  in  the  proclamation  of  the  President, 
were  subject  to  sale,  though  they  had  previously  been  reserved  by  law. 

The  admitting  of  a  portion  of  Section  10,  the  whole  of  which  the  Com- 
missioner of  the  General  Land  Office  had  declared  was  reserved  for  military 
purposes,  to  be  entered  by  a  pre-emptor,  is  a  declaration  on  the  part  of  the 
government  that  there  was  no  legal  reservation. 

PATENT—  EVIDENCE.  —  A  patent  is  not  the  title  itself,  but  the  evidence 
thereof. 

Bennett  v.  Farrar,  2  Gilm.  598;  Gray  r.  McCance.  14111.344;  Johnson  v. 
Towsley,  18  U.  S.  (13  Wall.)  72;  Warren  r.  Van  Brunt,  86  U.  S.  (19  Wall.) 
646;  Shepley  v.  Cowan,  91  U.  S.  330;  Moore  r.  Robbins,  96  U.  S.  530;  Mar- 
quez  v.  Frisbie,  101  U.  S.  473;  Vance  r.  Burbank,  101  U.  S.  514;  Quinby  r. 
Conlon,  104  U.  S.  420;  Starr  &  C.  111.  Stat,,  Ch.  51,  H  21,  and  authorities 
cited. 

Snch  decisions  are  not  conclusive  of  the  rights  of  the  United  States. 
United  States  v.  Minor,  114  U.  S.  233. 

857 


345  VANDALIA. 


McConnell  r.  Wilcox. 


In  a  republic,  the  title  to  land  derived  from  the  government,  springs 
from  the  law. 

REGISTER'S  CERTIFICATE. — The  certificate  of  a  Register  of  a  Land  Office, 
of  the  purchase  of  a  tract  of  land  from  the  United  States  is  of  as  high 
authority  as  a  patent. 

CONSTRUCTION. — The  words  "better,  legal,  pa  ram  omit  title, "used  in  the 
not  of  the  legislature,  making  the  certificates  of  the  Land  Officers  evidence, 
do  not  mean  the  title  of  the  United  States;  but  they  refer  to  cases  where 
the  United  States  had  not  the  title  at  the  time  of  the  sale  and  issuing  of  the 
certificate. 

JURISDICTION — PARTIES. — The  United  States  could  not  be  a  defendant  in 
in  a  State  court  to  any  action  whatever,  such  court  having  no  jurisdiction 
over  her;  and  consent  could  not  give  it.  And  although  it  is  certainly  true 
that  the  tenant,  in  all  actions  of  ejectment,  may  defend  himself  by  showing 
the  title  of  his  landlord,  it  does  not  follow  that  the  party,  who  could  not  be 
a  defendant  for  want  of  jurisdiction  in  the  court  over  him,  may  defend 
himself  in  such  case  in  the  name  of  a  person,  who,  upon  no  reasonable 
supposition,  could  be  considered  as  standing  in  the  relation  of  a  tenant. 

THIS  cause  was  tried  at  the  October  term,  1836,  of  the  Cook 
Circuit  Court,  before  the  Hon.  Thomas  Ford.  Judgment  was 
rendered  for  the  defendant  in  that  Court. 

M.  McCoNKELL,  for  the  plaintiff  in  error. 
[*346]     *D.  J.  BAKER,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court:  (1) 

This  was  an  action  of  ejectment  commenced  in  the  Circuit 
Court  of  Cook  county,  to  recover  possession  of  a  part  of  the 
S.  W.  fractional  quarter  of  section  10,  T.  39  K,  K.  14  E.,  on 
which  Fort  Dearborn  is  situated,  and  was  submitted  for  the 
decision  of  the  Circuit  Court  upon  an  agreed  case,  in  the  nat- 
ure of  a  special  verdict.  The  Circuit  Court,  after  mature  ex- 
amination of  the  various  points  presented  in  the  case  and  de- 
liberation thereon,  delivered  an  opinion  in  which  it  decided 
that  the  entry  and  purchase  by  Beaubien  of  the  tract  of  land 
in  question,  under  the  pre-emption  act,  was  valid  and  legal  iu 
every  respect ;  but  that,  for  the  reason  given  in  its  opinion, 
which  will  be  examined  hereafter,  he  could  not  assert  his  right 
against  the  "  United  States  in  the  present  form  of  action,"  and 
accordingly  rendered  judgment  for  the  defendant. 

To  revise  this  judgment  the  present  writ  of  error  has  been 
prosecuted. 

The  principal  and  direct  error  relied  on  by  the  plaintiff  in 
this  cause  is  this  portion  of  the  decision  of  the  Circuit  Court; 

(1)  This  cause  was  heard  at  the  last  December  term  of  this  Court,     LOCK- 
WOOD,  Justice,  dissented  from  the  opinion  of  the  majority  of  the  Court,  and 
WILSON,  Chief  Justice,  being  interested  in  the  decision  of  the  questions  in- 
volved in  the  cause,  gave  no  opinion. 
836 


JUNE  TEEM,  1837.  316 

McDonnell  v.  Wilcox. 

and  it  might,    perhaps,   be   sufficient  to  merely   review  the 
grounds  upon  wh'ch  that  part  of  the  decision  has  been  predi- 
cated ;  but  as  the  case  is  marked  with  facts  which  bring  into 
discussion  princi^  !es  of  a  ]  eculiarly  interesting  and  important 
character,  it  has  been  considered  more  necessary  and  proper  to 
examine  the  whole  case  as  presented  by  the  record.     And  here 
it  may  not  be  ami?s   in  the   consideration  which  is  to  be  be- 
stowed upon  it,  and  to  a  correct  elucidation  of  the  respective 
rights  of  the  parties  to  the  controversy,  to  recur  very  briefly 
to  a  review  of  the  history  of  the  public  lands  in  the  Western 
States.     The   whole   territory   north   of  the  river  Ohio,  and 
west  of  Pennsylvania,  extending  northwardly  to  the  northern 
boundary  of  the  United  States,  and  westwardly  to  the  Missis- 
sippi river,  was  claimed  by  Virginia,  and  she  insisted  that  the 
same  was  within  her  chartered  limits.     During  the  war  of  the 
Revolution  her  gallant  troops,  under  the  command  of  George 
Rogers  Clark,  conquered  the  country,  and  she  came  into  the 
possession  of  the  French  settlements  at  Vincennes,  and  those 
situated  on  the  Mississippi  river.     The  States  of  Massachusetts, 
Connecticut  and  New  York  also  claimed  considerable  portions 
of  the  same  territory.     Many  of  the  other  States  whose  limits 
contained  but  a  very  small  portion  of  waste  and  uncultivated 
lands  contended  that  a  portion  of  the  immense  body  of 
waste  lands  lying  within  the  territory  claimed  by  *Vir-    [*347] 
ginia  and  the  other  States  who  had  advanced  their  re- 
spective claims  to  the  same,  ought  to  be  appropriated  as  a  com- 
mon fund  to  pay  the  expenses  of  the  war.     Congress,  with  the 
desire  and  hope  of  composing  these   conflicting  claims  and 
opinions,  recommended  to  the  States  having  these  large  tracts 
of  unappropriated  and  waste  lands  in  the  now  \VesternStates,  to 
make  a  liberal  cession  to  the  United  States  of  a  portion  of  their 
respective  claims  for  the  benefit  of  all  the  States  composing  the 
Union.     Virginia,  acting  on  the  suggestion,  on  the  1st  of  March, 
1784,  ceded  to  the  United  States  alfher  right,  title  and  claim  to 
the  territory  north  west  of  the  river  Ohio  on  certain  conditions, 
some  of  which  were,  "  That  the  rights  of  the  old  French  settlers 
should  be  secured;  that  150,000  acres  near  the  rapids  of  the  Ohio 
for  her  State  troops  who  had  reduced  the  country,  and  another  of 
about  3,500,000  to  satisfy  bounties  promised  to  her  troops,  on 
the  continental  establishment,  should  be  reserved  ;"  but  the 
most    important  condition  of    the  cession  was  that  "all  the 
lands  within  the  territory  so  ceded  and  not  reserved  or  appro- 
priated to  the  purposes  named  in  the  act  of  cession,  should  be 
considered  a  common  fund  for  the  use  and  benefit  of  such  of 
the  United  States  as  had  or  should   become  members  of  the 
Confederation,  Virginia  inclusive,  according  to  their  usual  re- 


'347  VANDALIA. 


McConnell  t>.  Wilcox. 


spective  proportions  in  the  general  charge  and  expenditures, 
and  should  be  faithfully  and  bonafide  disposed  of  for  that  pur- 
pose, and  for  no  other  use  or  purpose  whatsoever."  In  June, 
1786,  Congress  recommended  to  the  legislature  of  Virginia  to 
take  into  consideration  their  act  of  cession,  and  revise  the  same  so 
far  as  to  empower  the  United  States  to  make  such  a  division 
of  the  territory  of  the  United  States,  lying  northerly  and 
westerly  of  the  river  Ohio,  into  distinct  republican  States,  not 
more  than  five  nor  less  than  three,  as  the  situation  of  that 
country  and  future  circumstances  might  require ;  which  States 
should  hereafter  become  members  of  the  Federal  Union  and 
have  the  same  rights  of  sovereignty,  freedom  and  independence 
as  the  original  States,  in  conformity  with  the  resolution  of 
Congress  of  the  10th  of  October;  to  which  revision  and  alter- 
ation so  proposed,  the  State  of  Virginia,  on  the  30th  of  De- 
cember, 1788,  by  her  legislature  assented,  and  did  ratify  and 
confirm  the  same  and  the  5th  Article  of  the  Ordinance  of  Con- 
gress in  relation  thereto.  New  York,  Massachusetts  and  Con- 
necticut made  similar  cessions,  and  thus  the  conflicting 
claims  of  these  States  were  adjusted.  This  succinct  narrative 
of  the  manner,  and  the  objects  for  which  these  several  ces- 
sions were  made,  will  be  obvious  when  the  power  of  the  Uni- 
ted States  to  make  appropriations  of  the  public  domain,  and 
the  particular  manner  in  which  they  may  be  done,  and  objects 
to  which  such  appropriations  are  applied  shall  have  been  con- 
sidered. 

[*348]  *From  the  facts  disclosed  in  the  agreed  case,  of 
which  we  shall  recite  such  parts  as  we  deem  material 
to  be  examined  and  considered,  it  appears  that  Beaubien,  in 
the  year  1817,  bought  a  house  on  the  fraction  of  land  in  ques- 
tion, from  one  Dean,  an  army  contractor,  lor  $1,000  ;  also,  an 
enclosure  and  garden  attached  thereto,  which  were  in  posses- 
sion of  and  occupied  by  said  Dean  ;  that  thereupon  Beaubien 
took  possession  thereof  and  occupied  the  same,  and  cultivated 
a  part  of  the  enclosure  and  garden  in  every  year,  from  1817  to 
the  19th  of  June,  1836  ;  that  in  1823,  certain  factory  houses 
built  on  the  said  land,  were,  by  the  order  of  the  Secretary  of 
the  Treasury,  sold,  and  one  Whiting  became  the  purchaser. 
In  the  same  year,  Whiting  sold  the  same  to  the  American  Fur 
Company;  and  the  said  company  sold  the  same  to  Beaubien 
for  five  hundred  dollars,  who  took  possession  thereof  and 
continued  to  occupy  the  same,  together  with  a  part  of  the 
said  quarter  section  of  land,  to  the  date  of  the  commencement 
of  this  suit.  The  occupation  and  use  of  the  buildings  and 
ground,  by  Beaubien,  was  undisturbed  and  undisputed,  by  any 
person  whomsoever,  from  the  year  1817  to  the  time  of 

SCO 


JUNE  TEEM,  1837.  348 

McConnell  v.  Wilcox. 

commencing  the    present   action.     It   further   appears,  that 
upon   this   state   of  facts,  Beaubien  having  cultivated  a  part 
of  the  S.  "W.  fractional  qr.,  S.  10,  T.  39,  K,   E.  14,  E.,  and 
being  in  actual  possession  of  the  part  cultivated  on  the  29th 
May,  1830,  (the  date  of  the  first  pre-emption  law)  and  that 
lie  also  cultivated  a  part  in  1833,  was  in  actual  possession  on  the 
19th  June,  1834  (the  date  of  the  last  pre-emption  law),  and  that 
being  thus  possessed,  on  .the   7th  May,  1831,  he  made  ap- 
plication for  a  pre-emption  to  the  Land  Officers  at  Palestine, 
which  was  rejected,  though  on  the  same  day  a   pre-emption 
was  granted,  at  the  same  office,  to  oneEobert  A.  Kinzie,  for  the 
north  fractional  quarter  of  the  same  section.     He  also  applied, 
in  June,  1834,  to  the  Land  Office  at  Danville  for  a  pre-emp- 
tion, which  was  refused  ;  and  he  was  informed  that  the  tract 
claimed  had  been  reserved  for  military  purposes  ;  that  after  the 
establishment  of  the  Land  Office  at  Chicago,  the  President  of 
the  United  States,  on  the  12th  February,  1835,  by  procla- 
mation, directed  various  lands  in  that  district,  in  which  it  is 
admitted  the  lands  in  question  are  to  be  exposed  to  sale  on 
the  15th  June,   1835,  including  the  South  West  quarter  of 
Section  10,  unless  the  same  is  excepted  in  the  terms  used  in 
said  proc!amation,  under  the  words,  "  The  lands  reserved  by 
law  for  the  use  of  schools,  and  for  other  purposes,  will  be  ex- 
cluded from  sale."     Appended  to  this  proclamation,  is  a  gen- 
eral notice  to  all  persons  claiming  pre-emptions  to  any  of  the 
lands  directed  to  be  sold,  requiring  them  to  appear  before  the 
register  and  receiver,  before  the  day  of  sale,  and  make  proof 
of  their   pre-emption.     The    Commissioner  of  the   General 
Land  Office  transmitted  to  the  Land  Office  at  Chicago, 
the  extended  plat  of  the  lands  in  *the    proclamation     [*349] 
described,  marking  and  coloring  thereon  certain  lands 
to  be  reserved  from  sale ;  but  no  part  of  fractional  section 
10,  was  so  marked  to   be  reserved.     On  the   28th    of  May, 
1835,  it  further  appears  that  Beaubien  applied  at  the  Land 
Office,  at  Chicago,  and  there  proved,  to  the  satisfaction  of  the 
register  and  receiver,  that  he  was  entitled  to  a  pre-emption 
on  said  lands,  under  the  act  of  the  19th  of  June,  1834;  and 
on  the  same   day  entered  and    purchased,  by   means  of  his 
pre-emption,  the  South  West  fractional  quarter  of  Section  1 
aforesaid,  in  due  form  of  law,  by  paying  the  purchase  money 
and  obtaining  the  receiver's  receipt,  and  register's  certificate 
of  entry  and  purchase.     Jt  also  appears,  in  the  agreed  case, 
that  the  lessor  of  the  plaintiff  duly  and  formally  purchased  of 
Beaubien,  before  the  commencement  of  this  suit,  so  much  of 
fractional  section  10  as  is  now   in  controversy,  including  the 


340  VANDALIA. 


McConnell  r.  Wilcox. 


stockade  and  fort,  with  notice  that  a  controversy  existed  as  to 
the  title  of  the  same. 

It  further  appears  that  at  the  commencement  of  the  suit,  the 
defendant,  as  an  officer  of  the  army,  with  soldiers  under  his 
command,  occupied  the  post  (consisting  of  some  wooden  build- 
ings, and  a  stockade  of  pickets  agreed  to  be  worth  three  dol- 
lars per  month)  by  orders  from  the  Secretary  of  War.  This 
jx>st  was  first  occupied  by  the  troops  of  the  United  States,  in 
1804,  and  such  occupation  continued  until  the  16th  of  August, 
1812,  when  it  was  taken  by  the  savages,  and  the  troops  all 
massacred.  On  the  4th  of  July,  1816,  it  was  re-occupied  by 
the  United  States  troops,  and  such  re-occupation  continued 
until  May,  1823,  when  it  was  abandoned  by  the  order  of  the  gov- 
ernment, an  Indian  agent  being  left  in  possession.  Some  fac- 
tory houses  were  built  on  the  fraction  for  the  use  of  the  In- 
dian Department.  On  the  10th  of  August,  1828,  it  was  again 
occupied  by  the  United  States  troops,  and  in  May,  1831,  evac- 
uated, and  left  in  the  possession  of  a  citizen,  who  authorized' 
another  citizen  to  take  possession  thereof.  In  1832,  it  was 
again  re-occupied  by  the  troops,  and  such  re-occupation  con- 
tinued up  to  the  commencement  of  this  action.  The  lands  in 
question  were  surveyed  in  1821.  On  the  2d  of  September, 
1824,  the  Indian  agent  at  Chicago  wrote  a  letter  to  the  Sec- 
retary of  War,  requesting  that  the  tract  in  question  might  be 
reserved  for  the  use  of  the  Indian  Agency  at  that  place; 
which  letter,  it  appears,  was,  on  the  30th  of  the  same  month, 
transmitted  to  the  Commissioner  of  the  General  Land  Offict-, 
with  a  request  that  fractional  section  10  aforesaid  might  be 
reserved  for  the  use  of  the  Indian  Department.  In  reply 
to  this  letter,  the  commissioner,  on  the  1st  of  October  follow- 
ing, directed  that  the  whole  of  fractional  section  10  aforesaid, 
should  be  reserved  for  military  purposes.  In  January,  1834.  the 
Commissioner  of  the  General  Land  Office  addressed  a  no  ce  to 
the  Secretary  of  War,  inquiring  whether  the  said  frac- 
[*350]  tion  was  *reserved  for  military  purposes,  or  for  the 
use  of  the  Indian  Department,  and  was  an&wered  that 
it  was  wanted,  and  then  used,  for  military  purposes. 

The  case  also  exhibits  as  evidence,  the  duplicate  receipt  of 
the  receiver  of  public  moneys  of  the  Land  Office  at  Chicago, 
expressing  on  its  face  full  payment  of  the  purchase  money  by 
Beaubien,  for  the  fractional  quarter  section  ol  land  in  contro- 
versy, under  the  pre-emption  act  of  the  19th  of  June,  1834; 
also  a  certificate  of  the  Register  of  the  same  Land  Office,  stating 
the  fact  of  purchase  and  sale,  under  the  KI  <ne  pre-emption  law 
by  the  same  individual ;  the  original  of  which,  it  is  admitted' 
is  on  file  in  the  General  Land  Office;  and  another  certificate- 


JUNE  TERM,  1337.  350 

McConnell  v.  Wilcox. 

by  the  same  register,  given  to  tlie  purchaser,  stating  the  fact, 
that  the  sale  and  purchase  are  matters  of  record  in  his  office; 
and  lastly,  a  deed  for  the  premises  in  question,  from  the  pre- 
emptor  to  the  lessor  of  the  plaintiff.  Upon  this  exhibition  of 
title  hy  the  lessor  of  the  plaintiff,  and  all  the  facts  connected 
therewith,  as  disclosed,  and  the  several  acts  of  Congress  appli- 
cable thereto,  and  the  laws  of  this  State,  he  insists  that  he  is 
entitled  to  recover  the  possession  of  the  premises  sued  for; 
having,  as  he  contends,  shown  a  legal  title  to  the  same,  and  the 
right  of  possession.  The  defendant  insists,  1st,  that  no  act  of 
ejectment  will  lie  against  the  commander  of  a  fort;  2d,  that 
the  fraction  of  said  land  in  question  was  reserved  or  appro4 
priated  by  lawful  authority,  for  military  purposes;  and  that, 
therefore,  the  land  officers  had  no  jurisdiction  over  it  to 
authorize  the  granting  of  a  pre-emption  to  it,  or  to  sell  it ;  and 
that  their  acts  are  necessarily  void,  and  convey  no  title  what- 
ever to  the  pre-emptor  ;  3d,  that  the  legal  estate  in  the  land 
is  still  in  the  United  States,  and  that  a  patent  is  necessary  to 
be  issued  before  a  divestiture  of  the  title  of  the  government  can 
take  place ;  4th,  that  the  government,  though  no  party  to  the 
suit,  may  assert  its  right  to  the  ground,  through  the  officer  in 
the  possession  thereof. 

In  the  investigation  proposed  to  be  given  to  the  case  before 
us,  the  several  points,  in  the  natural  order  in  which  they  occur, 
with  the  facts  and  principles  they  involve,  will  be  discussed, 
and  such  conclusions  stated  as  seem  to  be  justly  inferrible 
therefrom.  Adhering  to  this  order,  we  propose  to  examine, 
first,  all  the  essential  facts  connected  with  the  disposition  and 
title  to  the  land,  as  set  forth  on  the  part  of  the  lessor  of  the 
plaintiff;  and  we  are  necessarily  led  to  the  inquiry,  What  is 
the  character  of  the  title  exhibited?  To  ascertain  this,  it  will, 
we  apprehend,  be  unnecessary  to  j  artici^arly  enumerate  more 
of  the  provisions  of  the  various  acts  of  Congress,  which  pro- 
vided for  the  sale  and  disposal  of  the  public  lands,  than  relate 
directly  to  the  pre-emptions  authorized  by  the  laws  of  1830 
and  1834 ;  and  such  other  acts,  as  taken  in  connection 
therewith,  have  a  bearing  on  *this  case  ;  and  from  [*351] 
which,  to  ascertain  whether  the  actd  of  the  register 
and  receiver,  in  this  particular  cane,  are  within  the  scope  of 
the  powers  conferred,  and  the  duties  required  of  them,  by  law. 
It  can  not,  we  apprehend,  be  denied,  that  if  these  acts  have 
been  confined  within  the  limits  of  the  jurisdiction  confided  to 
these  officers,  such  acts  must  be  valid  and  binding,  unless  an 
appeal  has  been  provided  for,  or  a  revision  of  their  decision  in 
some  other  mode  is  prescribed  by  law.  The  Supreme  Court 
of  the  United  States  have,  in  a  variety  of  cates,  asserted  this 


3M  VANDALIA. 


McConnell  v.  Wilcox. 


doctrine,  and  particularly  in  the  cases  of  Brown  et  al.  v.  Jack- 
wn,  7  Wheaton ;  PoUcs  Lessee  v.  Wendell,  5  "Wheaton ;  1 
Crunch,  171 ;  4  Wheaton,  423  ;  3  Peters,  412  ;  4  Peters,  563  ; 
2  Peters,  147,  168.  That  Court  has  said  in  these  cases,  "That 
the  decisions  of  the  Board  of  Commissioners,  under  the  acts 
of  Congress  providing  for  indemnification  of  claimants  to 
public  lands,  in  the  Mississippi  Territory,  are  conclusive  be- 
tween the  parties,  in  all  cases,  within  the  jurisdiction  of  the 
Commissioners."  That  as  to  irregularities  committed  by  the 
officers  of  the  government  prior  to  the  grant,  the  Court  does 
not  express  a  doubt,  but  the  government,  and  not  the  indi- 
vidual, must  bear  the  consequences  resulting  from  them. 
This  Court  disavows  having  ever  decided  more  than  that  an 
entry,  or  other  legal  incipiency  of  title,  was  necessary  to  the 
validity  of  a  grant  issued  by  North  Carolina,  for  lands  in 
Tennessee,  after  the  separation.  They  have  never  expressed 
an  inclination  to  let  in  inquiries  into  the  frauds,  irregularities, 
acts  of  negligence,  or  of  ignorance,  of  the  officers  of  govern- 
ment prior  to  the  issuing  of  the  grant ;  but  on  the  contrary, 
have  expressed  the  opinion  that  the  government  must  bear 
the  consequences.  "It  is  a  universal  principle,  that,  where 
power  or  jurisdiction  is  delegated  to  any  public  officer,  or  tri- 
bunal, over  a  subject  matter,  and  its  exercise  is  confined  to  his, 
or  their  discretion,  the  acts  so  done,  are  binding  and  valid  as 
to  the  subject  matter ;  and  individual  rights  will  not  be  dis- 
turbed collaterally  for  anything  done  in  the  exercise  of  that 
discretion,  within  the  authority  and  power  conferred.  The 
only  questions  which  can  arise  between  an  individual  claiming 
a  right  under  the  acts  done,  and  the  public,  or  any  person 
denying  their  validity,  are  power  in  the  officer  and  fraud  in 
the  party  ;  all  other  questions  are  settled  by  the  decision  made, 
or  act  done,  by  the  tribunal  or  officer,  whether  executive, 
legislative,  judicial  or  special,  unless  an  appeal  is  provided  for, 
or  other  revision,  by  gome  appellate,  or  supervisory  tribunal, 
is  prescribed  by  law."  Proceeding  then  to  ascertain  what  those 
powers  and  duties  are,  it  will  be  seen,  that  by  the  act  of  1830, 
it  is  provided  that  every  settler  and  occupant  of  the  public 
lands,  who  cultivated  any  part  thereof  in  1829,  and  was  ir 
actual  possession,  on  the  20th  day  of  May,  1830,  should 
[*352]  be  entitled  *to  enter,  at  private  sale,  a  quarter  section, 

to  include  his  improvements. 

The  act  further  provides,  "  That  the  right  of  pre-emption 
under  this  act,  does  not  extend  to  any  lands  which  are  reserved 
from  w^e  by  an  act  of  Congress,  or  by  order  of  the  President, 
or  which  may  have  been  appropriated  for  any  purpose  what- 
ever, or  for  the  use  of  the  United  States,  or  either  of  the 


JUNE  TEEM,  1837.  352 

McConnell  v.  Wilcox. 

States  in  which  they  may  be  situated."  The  act  of  1834,  pro- 
vides, "  That  every  settler  and  occupant  of  the  public  land, 
who  cultivated  any  part  thereof  in  1833,  and  was  in  actual 
possession  on  the  19th  June,  1834,  should  have  a  similar  right 
to  enter  at  private  sale,  a  quarter  section  to  include  his  improve- 
ments." This  act  also  revives  the  act  of  1830,  and  contin- 
ues it  in  force  for  two  years.  Now  under  these  acts,  what 
were  the  duties  the  Land  Officers  had  to  perform  ?  Were  they 
not  to  satisfy  themselves  that  the  applicant  for  the  pre-emp- 
tion had  proven  himself  an  occupant  and  settler  within  the 
provisions  of  these  acts,  and  had  cultivated  a  part  of  the 
tract  applied  for,  according  to  the  requirements  thereof  ?  If 
satisfied  of  these  facts,  and  the  land  was  not  reserved,  or  ap- 
propriated within  the  meaning  of  the  recited  provisions  of  the 
pre-emption  laws,  but,  on  the  contrary,  had  been  proclaimed 
for  sale,  by  the  order  of  the  President  of  the  United  States,  by 
what  right,  or  the  exercise  of  any  other  than  an  arbitrary 
will,  could  they  have  refused  to  permit  the  applicant  to  enter 
and  purchase  the  tract  in  question  ?  The  proof  shows,  that 
this  land,  with  others  in  the  district,  was  ordered  for  sale,  and 
that  while  other  tracts  were  designated,  by  coloring  them  on 
the  maps  as  excluded  from  sale,  this  tract  was  not  so  colored  ; 
that  no  information  had  been  communicated  to  the  officers, 
from  any  department  of  the  government,  that  the  land  had 
been  reserved  or  appropriated,  or  that  it  in  any  way  fell 
within  the  exceptions  enumerated  in  the  pre-emption  acts,  an- 
terior to  the  entry,  sale  and  purchase  by  Beaubien.  In  the 
absence  of  any  such  information,  they  were  necessarily  bound 
to  decide  that 'they  had  no  power  themselves  to  withhold  it  from 
sale  ;  and  had  tliey  not  granted  the  pre-emption  to  Beaubien, 
by  what  authority  would  they  have  been  justified  from  expos- 
ing it  to  public  sale,  as  they  were  ordered  by  the  President's 
proclamation  ?  How  were  they  to  determine  that  the  govern- 
ment had  not  chosen  to  expose  it  to  public  sale,  in  the  absence 
of  all  instructions  to  the  contrary,  and  with  no  evidence  what- 
ever that  it  was  legally  reserved  from  sale,  or  excluded  by  the 
provisions  of  the  pre-emption  acts?  An  analogous  case, 
which  seems  to  be  striking,  lias  been  put,  and  for  the  sake 
of  illustration,  it  will  be  stated.  By  law,  all  lands  contain- 
ing lead  ore.  are  reported  by  the  surveyor.  If,  however,  a 


cers  had  jurisdiction  to  sell,  and  had  no  evidence  that  it  con- 
tained ore.     But  the    present  case   is   supposed  to   be  much 

866 


353  V  AND  ALIA. 


McConnoll  v.  Wilcox. 


stronger  than  the  one  put,  as  there  is  an  express  reservation 
from'sale  in  the  case  of  lands  containing  ore,  and,  as  is  con- 
tended, no  reservation  by  law  in  the  present  instance.  It 
might,  however,  he  asked,  whether  the  register  and  receiver 
were  merely  to  examine  into  the  cultivation  and  occupancy  of 
the  lands,  or  whether  they  were  required  to  ascertain  whether 
the  land  was  public  land — whether  it  was  within  the  district, 
and  had  it  been  reserved  from  sale,  or  appropriated  by  law  to 
any  purpose  whatever?  If  it  were  their  duty  to  investigate 
the  three  latter  points,  then  it  seems  clear,  that  they  only  were 
to  be  satisfied  on  all  the  questions  presented,  and  that  their 
decision,  like  that  of  all  other  tribunals,  where  no  appeal  is  al- 
lowed, is  final  and  conclusive,  upon  all  the  facts  submitted  to 
their  examination  and  decision.  This  Court  could  not  review, 
or  reverse  their  decision,  nor  could  its  propriety  be  inquired 
into. 

The  proclamation  of  the  President  had  declared  that  cer- 
tain lands  were  reserved  from  sale  ;  but  how  were  the  land  offi- 
cers to  ascertain  which  those  lands  were  ?  So  far  as  the  procla- 
mation had  specified  them,  and  as  to  those  which  they  had  been 
apprised  by  official  information  from  the  proper  department 
of  the  government  were  of  that  character,  there  could  be 
no  donbt.  But  as  to  the  ascertainment  of  others,  they  must 
necessarily  rest  altogether  upon  extrinsic  evidence.  And  if 
this  supposition  be  correct,  then  it  necessarily  implied  a  power 
and  jurisdiction  in  them  to  ascertain  and  decide  all  the  points 
stated.  It  is  not  deemed  important  to  directly  decide  the 
question  as  to  the  authority  of  the  officers  to  make  the  three 
latter  inquiries,  though  the  right  to  investigate  and  determine 
all  the  points  would  seem  to  be  admitted  by  a  recent  opinion 
of  the  constitutional  law  officer  of  the  general  government  in 
which  he  affirms,  "  That  the  power  of  ascertaining  and  decid- 
ing on  the  facts  which  entitle  a  party  to  the  right  of  pre-emp- 
tion is  exclusively  vested  in  the  register  and  receiver  of  the 
land  district  in  which  the  lands  are  situated  without  any  power 
of  revision  elsewhere  ;  and  that  in  weighing  the  evidence  and 
in  deciding  on  its  sufficiency  these  officers  act  in  a  judicial  ca- 
pacity ;  if  it  proves  to  their  satisfaction  that  the  settlement 
and  improvement  required  by  law  have  been  made  they  must 
allow  tlie  entry  ;  if  it  fails  to  satisfy  them  of  these  facts  they 
must  -disallow  it  The  law  has  not  authorized  any  other  offi- 
cer to  reverse  or  revise  their  decision ;  nor  can  they  be  com- 
pelled to  decide  according  to  the  dictates  of  any  judgment  but 
their  own."  These  views  are  undoubtedly  in  accordance  with 
the  opinions  of  the  Supreme  Court  of  the  United  States  al- 
aca 


JUKE    TERM,  1837.  353 

McConnell  v.  Wilcox. 

ready  referred  to,  and,  we  think,  imply  full  power  in 
the  officers  *to  investigate  and  decide  all  the  points  [*354] 
presented.  Those  of  settlement  and  cultivation  are 
exclusively  and  undeniably  within  their  jurisdiction.  The  as- 
sumption that  the  land  officers  were  bound  to  inquire  into  and 
ascertain  whether  the  land  was  not  reserved  or  appropriated, 
would  clearly  imply  a  right  of  investigation  into  all  the  facts 
connected  therewith  and  jurisdiction  over  the  subject-matter 
of  their  investigation ;  and,  if  so,  according  to  the  foregoing 
views  would  be  exclusive  and  final.  Waiving  this  view  of  the 
case  let  us  suppose  that  the  inquiries  of  these  officers  were  con- 
fined to  settlement  and  cultivation  only  ;  and  that  the  right  of 
the  pre-emption  depends  on  the  fact  whether  the  fraction  was  not 
reserved  or  appropriated  in  the  manner  and  to  any  of  the  ob- 
jects specified  in  the  pre-emption  laws  of  1830  and  183-i'.  We 
take  it  for  granted  that  there  can  be  neither  a  reservation  nor 
appropriation  of  the  public  domain  for  any  purpose  whatever 
without  the  express  authority  of  the  law.  It  can  not,  surely, 
be  seriously  contended  that  the  President  of  the  United  States, 
or  any  of  the  executive  officers  in  the  several  departments  of 
the  government,  possess  an  absolute  and  inherent  power  to  do 
any  official  act  not  authorized  by  the  Constitution  or  laws  of  the 
United  States.  To  the  Constitution  and  laws  they  must  alone  look 
for  the  source  of  their  power  and  authority  because  they  can 
derive  them  from  no  other.  The  government  itself  is  a  lim- 
ited one,  and  the  great  charter  under  which  it  exists,  has  pre- 
scribed bounds  which  can  not  be  rightfully  transcended  ;  and 
all  its  functionaries  are  necessarily  restrained  by  its  provis- 
ions and  the  laws  made  in  pursuance  thereof  from  the  exercise 
of  an  authority  not  granted  thereby.  If  it  be  considered 
that  the. President  may  reserve  or  appropriate  the  public  do- 
main to  any  purpose  he  may  in  his  judgment  deem  useful  to 
the  country,  without  warrant  or  authority  of  law,  why  may  he 
not,  in  like  manner,  appropriate  the  public  treasure  for  similar 
objects?  The  one  may  be  as  laudable  as  the  other,  but  both 
would  be  equally  unauthorized  and  illegal.  To  admit  for  a 
moment  that  the  President,  without  the  authority  of  law,  may 
direct  the  application  of  the  public  moneys  of  the  nation,  to 
even  such  objects  as  may  undeniably  be  salutary  and  highly 
useful,  would  be  to  admit  the  exercise  of  a  power  in  direct 
violation  of  the  Constitution  ;  and  yet  the  exercise  of  a  power 
appropriating  and  applying  the  public  lands  to  purposes  not 
authorized  by  law,  but  in  direct  violation  of  the  express  condi- 
tion on  which  they  were  ceded,  and  the  purposes  to  which  they 
were  solemnly  stipulated  to  be  applied,  it  is  contended,  is  an 
implied  power,  rightfully  exercised  by  an  inferior  officer  of  the 

367 


354  YANDALIA. 


McConnell  v.  Wilcox. 


government  without  the  assent  of  the  executive  of  the  na- 
tion. This  position  is  most  assuredly  untenable.  Neither  the 
officer,  acting  in  his  own  name  or  that  of  the  Piesi- 
[*355]  dent,  nor  the  President  himself,  possess  any  *such  au- 
thority. To  appropriate  the  public  land  seems  to  us 
to  be  an  appropriation — at  least  virtually  so — of  the  treasure 
of  the  nation,  inasmuch  as  it  is  property  and  out  of  which  the 
moneys  of  the  nation  are  raised  by  sale. 

Admitting,  however,  for  the  sake  of  argument,  the  power 
of  the  Commissioner  to  make  the  reservation  agreeably  to 
the  request  of  the  Secretary  of  "War,  it  will  be  f  oimd  not  to 
have  been  made  in  conformity  to  the  object  required ;  nor 
does  it  appear  that  any  act  was  ever  done  setting  it  apart  from 
tiie  common  mass,  for  any  purpose  whatever.  No  record  ap- 
peal's to  have  been  made  of  it.  The  letter  of  the  Commis- 
sioner is  only  evidence  that  the  act  was  directed  to  be  done; 
but  whether  it  was,  or  in  what  manner  it  was  performed,  or 
by  whom,  it  does  not  appear.  As  late  as  1834,  the  Commis* 
tsioner  of  the  General  Land  Office  was  not  aware  that  it  had 
been  reserved,  and  he  accordingly  applies  to  know  whether  it 
was  wanted,  having  probably  learned  from  other  sources  than 
from  the  archives  of  his  office,  that  a  garrison  was  on  it.  In- 
deed, the  frequent  abandonment  of  the  post  and  subsequent 
temporary  occupation  of  it,  afford  strong  presumptive  evi- 
dence that  it  never  \vas  considered  a  permanent  post,  much 
less  a  reservation,  made  for  the  object  of  a  permanent  garrison. 

But  the  Commissioner  had  no  such  power.  On  examina- 
tion of  the  organization  of  the  General  Land  Office,  it  will  be 
perceived  that  it  is  constituted,  by  the  act  of  the  25th  of 
April,  1812,  a  subordinate  office  in  the  Treasury  Department, 
and  is  placed  under  the  immediate  direction,  supervision  and 
control  of  the  Secretary  of  the  Treasury;  without  his  author- 
ity, or  that  of  an  express  law,  the  Commissioner  can  do  no  act 
whatever,  much  less  that  of  making  a  reservation  of  the  pub- 
lic domain,  or  of  appropriating  it  to  any  object  whatever.  To 
make,  then,  the  act  of  the  Commissioner  valid,  in  the  present 
case,  admitting  that  the  power  existed  in  the  Treasury  De- 
partment, the  Commissioner  should  have  acted  in  obedience 
to  the  direction  and  authority  of  the  Secretary  of  the  Treas- 
ury; but  the  Secretary,  for  aught  that  appears,  was,  and  re- 
mained, in  total  ignorance  of  the  attempt  to  create  the  reser- 
vation— never  directed  it— rnor  subsequently  sanctioned  the 
act  of  the  Commissioner.  We  must  therefore  come  to  the 
conclusion  that  the  acts  of  the  Commissioner  of  the  General 
Land  Office  and  of  the  Secretary  of  "War,  in  attempting  to  re- 
serve and  appropriate  this  fraction,  were  unauthorized,  and 
an 


JUNE   TEEM,  1837.  355 

McConnell  v.  Wilcox. 

not  warranted  by  law.  It  has  been  said  that  the  act  of  these 
officers  may  be  considered  as  the  act  of  the  President,  and 
therefore  valid.  The  President  does,  doubtless,  exercise  many 
of  the  powers  conferred  on  him  by  law,  through  the  agency 
of  officers  of  the  Executive  Department;  and  had  there  been 
an  act  of  Congress  authorizing  the  President  to  make 
reservations  of  the  *public  lands  for  military  pur-  [*356] 
poses,  the  argument  would  have  had  much  force;  but 
none  such  has  been  shown;  and  we  understand  it  is  conceded 
that  none  such  exists.  Some  obsolete  laws  authorizing  the 
President  to  erect  fortifications  and  trading  houses  in  the  In- 
dian country,  have  been  referred  to  as  authorizing  the  reserva- 
tion; but  they  are  considered  as  having  no  application  what- 
ever to  the  case  before  us.  In  the  absence  of  any  law  author- 
izing the  application  of  the  lands  in  question,  to  the  objects 
to  which  they  have  been  applied,  it  will  be  remarked,  that 
they  were  requested  to  be  set  apart  for  the  use  of  the  Indian 
Department;  but  the  Commissioner  declares  he  had  di- 
rected them  to  be  reserved  for  military  purposes,  a  singular 
discrepancy  between  the  object  for  which  they  were  applied, 
and  the  use  to  which  they  are  said  to  have  been  reserved,  and 
one  by  no  means  reconcilable  with  the  intent  and  objects  for 
which  the  reservation  was  sought.  Independent  of  the  absence 
of  power  in  the  President,  or  the  heads  of  the  Department,  to 
make  the  reservation  contended  for,  it  appears  to  us  that  it 
was  not  competent  for  either  thus  to  apply  the  public  domain, 
because  it  was  not  one  of  the  objects  for  which  we  have  seen 
Virginia  had  made  the  cession.  It  was  agreed  by  all  the  par- 
ties to  the  cession,  that  the  land  so  ceded,  "  should  be  consid- 
ered a  common  fund,  for  the  use  and  benefit  of  such  of  the 
United  States  as  had  or  should  become  members  of  the  Con- 
federation— Virginia  inc'usive — according  to  their  usual  re- 
spective'proportions  in  the  general  charge  and  expenditure, 
and  should  be  faithfully  and  lonafide  disposed  of,  for  that 
purpose,  and  for  no  other  use  or  purpose  whatever."  Now, 
can  it  be  contended  that,  in  direct  violation  of  the  terms  of 
this  compact  between  the  United  States  and  Virginia,  and  in- 
stead of  faithfully  applying  the  land  in  question  to  the  objects 
stated,  by  a  lonafide  disposition  thereof,  the  President,  of  his 
mere  arbitrary  will,  could  appropriate  the  same,  without  law, 
to  a  use  and  purpose  expressly  prohibited.  If  it  were  com- 
petent for  any  power  whatever  thus  to  apply  the  land,  most 
certainly  Congress  could  alone  give  the  authority  thus  to  use 
it;  though  it  might  still  be  questioned  whether  such  an  act 
could  be  in  conformity  to  the  use  and  trust  upon  which  Vir- 
ginia ceded  the  territory.  What  would  be  the  legal  effect  of 

VOL.  1—24 


36!) 


856  VANDALIA. 


JtfcConnell  v.  Wilcox. 


a  violation  of  the  terms  of  the  compact  under  the  deed  of 
cession?  Would  it  not  be  a  reversion  of  the  lands  ceded  to 
the  original  donor  ?  Be  the  effect  what  it  may,  the  United 
States,  as  the  trustee  of  the  States,  had  no  power  to  divert  the 
funds  from  the  objects  of  their  application,  nor  to  misapply 
their  use  in  any  manner  whatever.  It  may  be  said,  that  Con- 
gress has,  in  repeated  instances,  applied  the  public  lands  to 
objects  confessedly  without  the  terms  of  the  grant.  Admit- 
ting that  she  has,  and  that  the  States,  by  their  representatives, 

are  supposed  assenting  thereto,  and  that  therefore  the 
[*357]  objection  is  *removed,  does  it  follow,  that  because  this 

assent  is  thus  presumed — though  in  truth,  in  many 
instances,  it  is  never  given,  because  on  many  occasions  the 
whole  delegation  of  a  State  in  Congress  have  disapproved 
and  voted  against  these  appropriations — that  the  President, 
or  a  subordinate  officer  of  the  government,  may,  when  it 
is  apparent  no  such  assent  can  be  given,  do  an  act  which,  if 
it  can  be  done,  at  all,  Congress  alone  possesses  the  power  to 
do? 

The  Supreme  Court  of  the  United  States,  in  the  case  oi  Jack- 
son v.  Clark  (1  Peters,  635),  in  discussing  the  principles  in- 
volved in  that  case,  having  quoted  the  terms  of  the  deed  of 
cession  from  Virginia,  remark,  "  That  the  government  of  the 
United  States  then  received  this  territory,  in  trust,  not  only 
for  the  Virginia  troops  on  the  continental  establishment,  but 
also  for  the  use  and  benefit  of  the  members  of  the  Confed- 
eration, and  this  trust  is  to  be  executed  by  a  faithful  and  bona 
fide  disposition  of  the  lands  for  that  purpose.  Language  can 
not  be  stronger,  nor  more  directly  applicable  to  the  case  be- 
fore us,  and  it  shows,  most  conclusively,  that  the  highest 
tribunal  in  the  nation  sanctions  the  rule  here  asserted.  In 
reflecting  on  this  branch  of  the  case,  another,  and  not  incon- 
siderable objection  has  arisen,  in  our  opinion,  to  the  exercise 
of  the  power  contended  for,  which  seems  to  conflict  with  the 
spirit,  if  not  the  letter,  of  the  16th  paragraph  of  the  eighth 
section  of  the  iirst  article  of  the  Constitution  of  the  United 
States,  which  provides  that  "  Congress  shall  have  power  to 
exercise  exclusive  legislation,  in  all  cases  whatsoever,  over 
such  district,(not  exceeding  ten  miles  square)  as  may  by  cession 
of  particular  States,  and  the  acceptance  of  Congress,  become 
the  seat  of  government  of  the  United  States  ;  and  to  exer- 
cise like  authority  over  all  places  purchased  by  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dock  yards,  and  all 
other  needful  buildings."  From  the  paragraph  quoted,  it 
seems  apparent  that  the  members  of  the  Convention  who 

370 


JUNE  TEEM,  1837.  357 

McConnell  v.  Wilcox. 

formed  the  Constitution  contemplated  that  places   for  forts, 
magazines,  arsenals,  dock  yards  and  other  buildings  connected 
therewith,  would  be  required  to  be  purchased  from   individ- 
uals in  the  several  States,  where  their  selection  and  erection 
might  be  deemed  necessary ;  and   that  it  was  still  more  im- 
portant to  give  exclusive  legislation  over  the  places  ceded,  for 
public  convenience  and  safety ;  but  etill  the    consent  of  the 
State  legislature  was  required,  before  such  purchases  could  be 
made  of  individuals,  and  the  places  be  so  used.     May  it  not, 
also,  have  been  intended  that  forts   and  permanent  garrisons, 
should   not  be  thus  erected  without  the  consent  of  the  State  ; 
and  that  to  prevent  the  accumulation   of  military   power,  in 
such   permanent  works,  the   assent   of   the   State  legislature 
should  be  required  before   they  could  be   erected? 
This  view   seems   to   be   neither  unreasonable   *nor     [*358] 
overstrained.     On  the  contrary,  this  inference  would 
be  warranted  by   the   supposition    that  the   State   authority 
would  view,  with  natural  jealousy,  the  collection  of  numerous 
armed  forces,  stationed  among  them  in  permanent  works  es- 
tablished without  their  consent,  and  beyond  their  control ;  and 
hence  we  have  seen,  that  in  the  cessions  made  by  the  States, 
under  this  power,  there  has  been  a  reservation  of  the  right 
to  serve  all  State   process,  civil   and   criminal,  upon  persons 
found  therein.     If,  however,  the  construction  contended  for,  of 
that  part  of  (he  Constitution,  is  not  warranted,  then  it  would 
seem  to  follow,  that  Congress  might,  and   the  President,  too, 
if   it  be  conceded   that  he  has,  without  the  authority  of  law, 
rightfully  the  power  to  erect  forts,  magazines  and  arsenals, 
upon  any  and  all  of  the  public  lands  within  the   new  States  ; 
thus  appropriating  them  to   objects  never  contemplated  by 
the  deed  of  cession,  but  in  positive  violation  of  the  trust  dele- 
gated ;  and  establishing  a  cordon  uf  military  posts  within  the 
body  of  a  State,  without  its  consent,  and  against  its  inclina- 
tion.    The  view  we  have  taken  denying  this  power,  is  greatly 
aided  by  an  act  of  Congress  of  the  3rd  of  March,  1819,  "  Au- 
thorising the  sale  of  certain  Military  Sites,"  which  provides 
"  That  the  Secretary  of  War  be,  and  'he  is  hereby,  authorized 
under  the  direction  of  the  President  of  the  United  States,  to 
cause  to  be  sold,  such  military  sites  belonging   to  the  United 
States,  as  may  have  been  found,  or  become   useless   for  mill 
tary  purposes  ;  and  the  jurisdiction  which  has  been   specially 
ceded  for  military  purposes  to  the  United   States,  by  a  State, 
over  such  sites,  shall  hereafter  cease."  (3  Story's  Laws,  1742.) 
This  act,  it  will  be   perceived,  relates  exclusively   to    such 
sites  as  had  been  found,  or  had  become,  at  the  time  of  the 
passage  thereof,  useless ;  and  rt  is  evident  that   Congress  did 


371 


353  VANDALIA. 


McConnell  v.  Wilcox. 


not,  from  the  very  phraseology  of  the  act  itself,  contemplate, 
that  any  other  military  sites  existed,  but  such  as  had  been  pur- 
chased of  individuals  by  the  consent  of  the  State  legislatures, 
by  the  retrocession  or  cessation  of  the  jurisdiction  before  ceded 
by  the  States.  The  idea  never  occurred,  that  the  public  lands 
had  been  permanently  appropriated  to  such  purposes ;  but 
that  the  occupations,  in  such  cases  were  merely  temporary, 
and  terminated  with  the  cause  that  produced  them.  It  is  not 
very  probable  that  such  a  state  of  things  would  be  likely  to 
occur ;  yet  if  the  reasoning  in  this  case,  for  the  defendant, 
be  correct,  it  would  seem  inevitably  to  lead  to  such  conclu- 
sions. It  can  not  be,  that  reasons  and  inferences,  drawn  from 
the  exercise  of  implied  power,  can  be  either  sound  or  just, 
which  would  tend  to  consequences  so  dangerous  and  liable  to 
abuse,  if  not  affording  means  to  him  who,  should  he  be  so  dis- 
posed, might  overturn,  in  succession,  the  sovereignty  and  in- 
dependence of  all  the  States.  Satisfied,  however, 
[*359]  that  there  has  been  no  act  of  Congress  passed  *ex- 
pressly  reserving  from  sale  the  particular  tract  of 
land  on  which  the  stockade  called  Fort  Dearborn  is  situated, 
and  appropriating  it  to  military  purposes  ;  and  that  the  Presi- 
dent has  not  made  any  order  previous  to  the  passage  of  the 
pre-emption  laws,  reserving  this  tract  for  such  objects  ;  and 
moreover  considering  it  as  admitted,  that  the  Commissioner 
of  the  General  Land  Office,  or  any  other  officer  of  the  gov- 
ernment, was  not  authorized,  in  any  way  whatever,  to  make 
the  reservation  contended  for ;  and  that  there  is  nothing  in 
the  general  laws  regulating  the  sale  of  the  public  land,  and 
conferring  the  powers,  and  prescribing  the  duties  of  the 
public  officers  of  the  United  States,  to  sanction,  much  less  au- 
thorize, this  act  of  reservation,  and  that  it  is  not  confirmed  by 
the  reservation  in  the  pre-emption  laws,  we  must  arrive  at 
the  conclusion,  that  the  reservation,  if  there  was  one,  at  the 
time  and  manner  in  which  it  was  made,  was  unauthorized  by 
any  law  of  the  United  States,  or  any  other  legal  authority 
whatever,  and  that  it  could  not  be  included  in  the  reservations 
named  in  the  President's  proclamation.  A  further  and  nec- 
essary inquiry  remains  to  be  made,  to  ascertain  whether  the 
land  officers  had  jurisdiction  over  this  particular  tract,  for 
the  purpose  of  allowing  the  pre-emption,  and  making  the 
sale  to  Beaubien,  supposing  it  admitted  that  they  could  not 
determine  themselves  the  question  of  reservation,  or  no  reser- 
vation. We  have  satisfied  ourselves  that  the  land  was  not  re- 
served from  sale  by  an  act  of  Congress,  or  by  order  of  the 
President  of  the  United  States.  Let  us  now  consider  whether 
it  has  been  appropriated  for  any  purpose  whatever,  or  for 

872 


JUNE  TEEM,  1837.  359 

McConnell  v.  Wilcox. 

the  use  of  the  United  States,  or  for  the  use  of  the  State  of 
Illinois.  It  has  been  shown,  we  think,  satisfactorily,  that  no 
act  of  Congress  exists,  making  the  reservation  contended  for ; 
and  we  take  it  for  granted,  that  there  is  no  such  act  appro- 
priating the  land,  in  any  manner  whatever.  It  seems  equally 
certain,  in  our  judgment,  that  an  appropriation  of  the  public 
domain  can  no  more  be  made  by  the  President  of  the  United 
States,  or  any  subordinate  officer  acting  under  him,  without 
the  warrant  of  law,  than  in  the  case  of  a  reservation.  Indeed, 
the  objection  is  stronger ;  because,  as  we  understand  the  use 
of  the  terms,  the  word  "reservation"  does  not  imply  an  ab- 
solute disposition  of  the  lands,  in  all  cases,  but  a  withholding 
of  them  from  some  other  disposition,  such  as  sale,  or 
for  the  use  of  schools  and  other  objects.  While  on  the 
contrary,  the  term  "  appropriation,"  would  imply,  most  clearly, 
a  setting  apart  or  application  to  some  particular  use;  when 
applied  in  reference  to  the  public  revenues,  it  will  be  seen, 
that  in  the  Constitution  of  the  United  States,  it  is  used  to  ex- 
press the  disposition  of  the  public  moneys  from  the  treasury 
by  law.  The  phrase  is,  "  No  money  shall  be  drawn  from  the 
treasury,  but  in  consequence  of  appropriations  made 
by  law."  As  to  the  *meaning  of  the  term,  in  the  [*3GO] 
sense  in  which  it  is  used  in  the  pre-emption  law,  we 
suppose  we  shall  best  ascertain  that  sense,  by  comparing  it 
with  the  context  of  the  section  itself.  It  will  be  seen,  that  it 
is  applied  in  a  general  sense:  first — the  words  are,  "or  which 
may  have  been  appropriated  for  any  pur]x>se  whatever ;"  sec- 
ondly—"or  for  the  use  of  the  United  States;  "  thirdly— '< or 
either  of  the  States  in  which  they  (the  lands)  may  be  situ- 
ated." Now  let  us  inquire,  by  what  power  can  the  public 
lands  be  appropriated  to  a  State  in  which  they  may  be  situ- 
ated? Certainly  not  by  the  order  of  the  President  of  the 
United  States ;  "but  most  clearly  alone  by  the  authority  of  an 
act  of  Congress  ;  nor  could  the  same  lands  be  appropriated  to 
the  use  of  the  United  States,  without  such  authority ;  be- 
cause, we  have  shown,  that  certainly  without  the  assent  _of  the 
representatives  in  Congress  of  the  several  States  in  the 
Union,  the  lands  could  riot  be  appropriated,  or  in  other  words, 
get  apart  or  applied  to  the  use  of  a  State  in  which  they 
are  situated,  nor  to  the  use  of  the  United  States.  ^  In  what 
manner,  and  by  what  means,  other  than  the  authority  of  an 
act  of  Congress,  could  they  be  appropriated,  set  apart,  or  ap- 
plied to  any  other  purpose  whatever?  Surely,  if  it  could 
not  be  legally  and  justly  done  in  the  one  case,  it  could  not 
most  clearly  'in  the  other.  It  is,  in  our  judgment,  entirely 
useless  to  discuss  the  precise  meaning  of  the  term  "appropri- 

873 


300  YAKDALIA. 


McConnell t>.  Wilcox. 


ated,"  in  its  general  and  extended  sense ;  because  its  mean- 
ing and  application  in  the  manner  it  has  been  used  in  the  pre- 
emption law,  can  not,  we  think,  admit  of  a  doubt.  It  means 
nothing  more  in  the  sense  in  which  it  is  used,  than  an  applica- 
tion oi  the  lands  to  some  specific  use  or  purpose,  by  vir- 
tue of  law,  and  not  by  any  other  power.  The  next,  and,  in 
our  view,  most  important  feature  in  this  cause,  which  remains 
to  be  considered,  is  the  4th  section  of  the  act  of  Congress, 
creating  the  Land  Office  at  Chicago,  passed  on  the  29th 
June,  1834,  which  contains  the  following  provisions: 

''  The  President  shall  be  authorized,  so  soon  as  the  survey 
shall  have  been  completed,  to  cause  to  be  offered  for  sale,  in 
the  manner  prescribed  by  law,  all  the  lands  lying  in  said  land 
district,  at  the  Land  Offices-in  the  respective  districts,  in  which 
the  land  so  offered  is  embraced;  reserving  only  section  sixteen 
in  each  township,  the  tract  reserved  for  the  village  of  Galena, 
such  other  tracts  as  have  been  granted  to  individuals,  and  such 
reservations  as  the  President  may  deem  necessary  to  retain  for 
military  posts,  any  law  of  Congress  heretofore  existing  to  the 
contrary  notwithstanding." 

The  President  of  the  United  States,  in  directing  the  sale  of  the 
public  lands,  by  his  proclamation  of  the  date  of  the  12th  of  Feb- 
ruary, 1835,  in  this  district — and  in  which  it  is  admitted  the  land 
in  question  is  situated — to  be  holden  on  the  15th  of  June,  1835, 
at  Chicago  ;  and  among  which  lands  the  South  West 
[*361]  ^fractional  quarter  of  Section  10,T.  39,  N.,  K.  14  E.  was 
included,  made  no  other  exception  in  his  proclamation 
of  lands  excluded  from  sale,  than  is  contained  in  these  words: 
"  The  lands  reserved  by  law,  for  the  use  of  schools,  and  for 
other  purposes,  will  be  excluded  from  sale."  From  the  charac- 
ter and  tenor  of  this  proclamation,  taken  in  connection  with 
the  4th  section  of  the  act  creating  the  Land  Office  at  Chicago, 
and  the  duty  devolved  on  the  President,  by  the  provisions  of 
that  section,  it  is  impossible  to  conceive,  that  in  the  proper 
discharge  of  his  duty,  specifically  enjoined  thereby,  he  had  not 
examined,  and  ascertained,  that  the  site  in  question  was  not 
necessary  to  be  retained  for  military  purposes.  The  words  of 
the  act,  it  will  be  perceived,  are,  that  the  President  shall 
cause  "to  be  offered  for  sale,  in  the  manner  prescribed  by  law, 
all  the  lands  lying  in  the  land  district,  in  which  the  lands  so 
offered  are  embraced,  reserving  only  section  sixteen  in  each 
township,  the  tract  reserved  for  the  village  of  Galena,  such 
other  tracts  as  have  been  granted  to  individuals,  and  the  State 
of  Illinois;  and  such  reservations  as  the  President  may  deem 
necessary  to  retain  for  military  posts,  any  law  of  Congress 
heretofore  existing  to  the  contrary  notwithstanding."  Can  it 


874 


JUNE  TEEM,  1837.  361 

McConnell  v.  Wilcox. 

be  supposed,  when  the  act  declared,  that  notwithstanding  any 
]aw  of  Congress  heretofore  existing  to  the  contrary,  all  the 
lands  in  the  district,  except  those  specially  enumerated,  should 
be  offered  for  sa^c,  un'ess  the  President  should  determine  that 
some  portion  thereof  was  necessary  to  be  retained  for  military 
posts,  that,  under  his  proclamation,  made  in  pursuance,  and  in 
accordance  with  that  act,  any  military  post  had  been  reserved  ? 
Is  it  not  more  consonant  to  reason,  and  a  just  interpretation  of 
his  acts,  in  reference  to  this  matter,  that  as  the  law  had  con- 
fided to  his  judgment  and  discretion,  the  decision  of  the  ques- 
tion, whether  such  military  posts  were  necessary  to.be  retained, 
he  had,  on  full  consideration  of  the  subject,  determined  that 
the  land  in  question  was  not  necessary  to  be  so  retained  ?  The 
act,  by  its  very  terms,  contemplates  the  possible  disposition  of 
such  reservations ;  and  that  cases  might  exist,  where  it  might 
promote  the  public  interest  so  to  dispose  of  them.  The  lan- 
guage of  the  act,  unless  thus  interpreted,  would  be  idle  and 
unmeaning.  The  legal  presumption  is,  that  the  President 
discharged  the  public  duty  imposed  on  him  by  the  terms  of 
the  law,  and  that  the  land  was  in  market,  as  proclaimed  by 
himself;  and  as  is  further  established  by  the  extended  plat 
furnished  to  the  Land  Officers;  and  on  which  there  was  no  evi- 
dence by  coloring,  (the  process  used  and  adopted  in  other  cases 
to  note  reservations,)  or  other  marks,  that  it  was  reserved  from 
sale.  In  a  further  view  to  be  given  to  the  provisions  of  this  4th 
section  of  the  act,  establishing  the  Chicago  Land  Office,  it  is  most 
evident,  that  the  law  intended  to  subject  all  such  reser- 
vations to  sale,  as  the  ^President  might  decide  not  nee-  [*362] 
essary  to  be  retained  for  a  specific  and  defined  object, 
to  wit — military  post;  so  that  under  this  act,  it  would  seem  to 
be  a  matter  of  no  importance,  whether  the  fraction  had  been 
reserved  by  law  or  not.  It  was  to  be  offered  for  sale,  if  the 
judgment  of  the  President  determined  it  not  necessary  to  be 
retained ;  such,  in  our  opinion,  is  the  only  admissible  and  just 
interpretation  of  that  section.  The  latter  words  of  the  proc- 
lamation can  not  exempt  the  lands  from  the  general  operation 
of  the  order  to  sell,  for  the  exclusion  from  sale  is  only  of  such 
lands  as  are  reserved  by  law  for  the  use  of  schools,  and  for 
other  purposes  ;  and  the  4th  section  of  the  act  recited,  declares 
that  these  reservations  by  law  shall  be  inoperative  in  certain 
cases,  if  the  President  determines  that  they  are  not  necessary 
to  be  retained.  Upon  this  view  of  the  facts,  and  the  law  relat- 
ing to  the  case  before  the  Court,  it  is  difficult  to  conjecture 
upon  what  grounds  the  Land  Officers  can  be  supposed  to  have 
exceeded  their  jurisdiction,  and  that  their  acts  are  necessarily 
void ;  we  confess  we  arc  at  a  loss,  in  whatever  aspect  the 

375 


VANDALIA. 


McConnell  v.  Wilcox. 


questions  affecting  the  legal  rights  of  the  parties  are  considered, 
to  see  the  least  excess  of  jurisdiction  ;  nor  can  we  imagine  how 
the  officers  can  be  liable  to  the  charge,  or  in  any  way  censur- 
able for  their  acts. 

There  are,  however,  other  additional  grounds,  which  seem 
to  have  a  direct  bearing  on  the  case,  and  in  our  judgment, 
recognize  the  legal  character  of  the  entry  and  purchase  by 
Beaubien.  It  will  be  recollected  that  the  case  shows,  that 
the  north  fractional  quarter  of  this  identical  fractional  section 
10,  which  the  Commissioner  of  the  General  Land  Office  di- 
rected the  whole  of  to  be  reserved  for  military  purposes,  was, 
on  the  7th  day  of  May,  1831,  entered  at  the  Palestine  Office, 
by  one  Robert  A.  Kinzie,  by  virtue  of  his  pre-emption  right, 
purchased  and  paid  for  by  him,  at  the  minimum  price,  and 
lias  since  been  patented.  Now,  how  is  it,  if  the  reservation 
contended  for,  was  duly  and  legally  made,  and  embraced  (as  it 
is  undoubtedly  contained)  in  the  description  -of  the  supposed 
reservation  made  by  the  commissioner,  that  in  the  one  case  the 
reservation  is  effectual,  as  is  contended,  to  bar  the  right  of 
entry  and  purchase  by  pre-emption, and  not  in  the  other?  On 
the  facts  of  the  case,  it  is  wholly  irreconcilable  with  a  just  in- 
terpretation of  the  rights  of  these  parties;  and  the  recogni- 
tion by  the  government,  in  the  case  of  Kinzie,  must  be  con- 
sidered as  a  clear  interpretation,  by  itself,  that  there  was  no 
legal  reservation  whatever;  because,  if  there  was,  the  entry 
and  purchase  of  the  north  fraction  of  section  10,  by  Robert  A. 
Kinzie,  being  a  part  of  the  same  fraction,  was  necessarily  as 
much  inhibited  by  law,  as  that  of  Beaubien's  could  be.  By 
this  act  the  government  has  manifestly  put  its  own  interpreta- 
tion on  the  character  of  the  supposed  reservation,  and 
[*363]  admitted,  we  think,  thereby,  that  it  was  Altogether 
\  nugatory  as  such.  On  the  2d  of  July,  1836,  an  act 

of  Congress  was  passed,  entitled,  "  An  act  to  confirm  the  sales 
of  Public,  Lands."  The  first  section  of  this  act  of  the  2d 
of  July  provides,  "  That  in  all  cases  where  public  lands,  taken 
from  the  bounds  of  a  former  land  district,  and  included 
within  the  bounds  of  a  new  district,  have  been  sold  by 
the  officers  of  such  former  district,  under  the  pre-emption 
laws,  or  otherwise,  at  any  time  prior  to  the  opening  of  the 
Land  Office  in  such  new  district ;  and  in  which  the  Commis- 
sioner of  the  General  Land  Office  shall  be  satisfied  that  the 
proceedings,  in  other  respects,  have  been  fair  and  regular, 
such  entries  and  sales  shall  be,  and  they  are  hereby  confirmed; 
and  patents  shall  be  issued  thereupon,  as  in  other  cases."  The 
second  section  declares,  "  That  in  all  cases  where  an  entry  has 
been  made  under  the  pre-emption  laws,  pursuant  to  instruc- 

376 


JUKE  TERM,  1837.  363 

McConnell  r.  Wilcox. 

tions  sent  to  the  register  and  receiver  from  the  Treasury  De- 
partment, and  the  proceedings  have  been  in  all  other  respects, 
fair  and  regular,  such  en  tries  and  sales  are  hereby  confirmed,  and 
patents  shall  be  issued  thereon  as  in  other  cases."  The  first 
section  was  evidently  intended  to  cure  cases  of  defective  juris- 
diction, where  the  officers  of  the  former  district  had  sold  lands 
under  the  pre-emption  laws,  or  otherwise,  lying  in  the  new 
district,  and  prior  to  the  opening  of  the  Land  Office  in  the 
new  district.  But  the  second  section  provides  for  another 
class  of  cases.  From  the  extreme  generality  of  the  language 
used,  the  section  must  apply  to  all  cases  where  the  officers,  allow- 
ing the  pre-emption,  have  proceeded  agreeably  to  the  instruc- 
tions sent  to  them  from  the  Treasury  Department ;  and  the 
proceedings  in  the  words  of  the  act,  have  been  in  all  other  re- 
spects fair  and  regular.  It  is,  however,  urged  that  this  sec- 
tion has  no  application  whatever  to  the  case  before  the  Court. 
Let  us  inquire  whether  this  affirmation  is  true.  Upon  the 
supposition  that  there  was  no  reservation  nor  appropriation  of 
the  fraction  of  land  in  controversy,  and  that  the  President 
of  the  United  States  had  determined  that  the  land  was  not 
necessary  to  be  retained  for  a  military  post,  and  that,  by  his 
proclamation,  it  had  been  offered  for  sale  according  to  law, 
we  ask  whether  it  would  not  have  been  liable  to  be  entered 
under  the  pre-emption  law  of  Congress ;  and  whether  an  entry 
and  purchase  so  permitted  by  the  officers  of  the  Chicago  Land 
Office,  who  had  entire  jurisdiction  in  the  case,  would  not  have 
been  in  pursuance  of  the  general  instructions  (special  ones  are 
not  and  can  not  be  allowed)  sent  to  the  register  and  receiver 
from  the  Treasury  Department ;  and  moreover,  whether  it 
couldbe  denied,  upon  proof  entirely  satisfactory  to  those  officers 
of  the  undeniable  right  of  the  applicant  to  the  right  of  pre-emp- 
tion, that  the  proceedings  in  the  present  case  could  possibly  be 
determined  to  be  other  than  fair  and  regular  in  all  other  re- 
spects. We  confess  that  we  are  at  a  loss  upon  any 
rational  principle  of  *induction  to  determine  other-  [*364] 
wise.  Consequently,  in  this  act  of  Congress,  we  find 
a  full,  complete,  and  entire  recognition  of  the  validity  of  the 
entry  of  the  tract  of  land  in  question  by  the  applicant,  and 
that,  as  such,  he  is  upon  every  principle  of  leca!  right  and 
moral  justice,  entitled  to  the  lands  agreeably  to  the  Laws  of  the 
United  States,  providing  for  the  disposal  of  the  public  domain. 
"We  have,  however,  the  construction  of  the  constitutional 

.*  /*  ^   1         •  1_  • 


would  observe  that  as  the  second  section  (meaning  of  the  act 

877 


364:  VANDALIA. 


McConnell  t>.  Wiicox. 


above  quoted)  is  enacted  in  connection  with  a  provision  curing 
certain  specified  irregularities,  the  irregularities  so  cured 
must  be  deemed  totally  excepted  from  the  second  section,  and 
that  the  same  principle  must  be  applied  to  the  first  section. 
That  is  to  saj,  in  the  case  provided  for  in  the  first  section,  the 
patent  should  be  issued,  provided  the  proceedings  have  been 
fair  and  regular  in  all  particulars,  other  than  that  provided  for 
and  remedied  in  the  second  section ;  and  in  the  case  provided 
for  in  the  second  section,  the  patent  should  be  issued,  provid- 
ed the  proceedings  have  been  fair  and  regular  in  all  particu- 
lars, except  that  remedied  in  the  first  section."  Then  we  un- 
derstand by  this  illustration  of  that  act,  if,  under  the  second 
section,  the  lands  were  within  the  district  of  the  officers  offer- 
ing them  for  sale,  and  the  proceedings  have  been  fair  and  reg- 
ular, that  then  there  is  no  doubt  that  a  patent  should  issue. 

We  may  be  permitted  to  ask  if  this  construction  be  a  fair 
and  rational  interpretation  of  the  intention  of  the  law  maker 
as  evidenced  by  the  second  section  of  the  act,  whether  this 
section  remedied  any  pre-existing  defect  in  the  entries  it  pro- 
fesses to  cure  and  confirm  ?  It  would  seem  under  such  a  con- 
struction, as  we  understand  it,  to  have  been  a  nugatory  and 
useless  act  of  legislation;  but  admitting  the  construction  to  be 
correct,  still  we  conceive  that  it  was  a  direct  confirmation  of 
such  pre-emptions  as  had  been  regularly  obtained,  and  sanc- 
tioned every  allowance  by  the  land  officers  of  a  pre-emption 
so  by  them  granted.  Whether  the  act  was  absolutely  necessary 
to  secure  the  right  it  is  unnecessary  now  to  inquire.  The  effect 
alone  is  to  be  determined;  and  it  must  be  considered  as  a  legis- 
lative sanction  of  the  right  granted  to  pre-emptors.  The  terms 
of  the  section  are  general.  In  all  cases  where  an  entry  has 
been  made  under  the  pre-emption  laws,  pursuant  to  instruc- 
tions sent  to  the  register  and  receiver  from  the  Treasury 
Department,  such  entries  and  sales  are  confirmed.  This  is  an 
universal  confirmation  of  all  cases  of  the  regular  purchase  of 
land  under  pre-emptions.  The  next  question  to  be  considered 
ifi  whether  there  was  fraud  in  obtaining  the  pre-emption  by 

Beaubien?  And  here  we  are  first  to  inquire  what  is 
[*365]  fraud  and  in  what  does  it  consist?  *It  is  defined  by 

all  judges,  jurists  and  commentators  on  Jaw,  "  That  to 
constitute  actual  fraud  between  two  or  more  persons,  to  the 
prejudice  of  a  third,  contrivance  and  design  to  injure  such 
third  person  by  depriving  him  of  some  right  or  otherwise  im- 
pairing it,  must  be  shown;  actual  fraud  is  not  to  be  presumed, 
but  ought  to  be  proved  by  the  party  who  alleges  it;  and  if  the 
motive  and  design  of  an  act  may  be  traced  to  an  honest  and 
legitimate  source,  equally  as  to  a  corrupt  one,  the  former 


378 


JUNE  TEEM,  183T.  365 

McConnell  v.  Wilcox. 

ought  to  be  preferred."  (Conrad  v.  JVicoll,  4  Peters,  295.) 
It  may  consist  in  making  a  false  representation  with  the  knowl- 
edge at  the  time  that  it  is  false,  with  a  design  to  deceive  and 
defraud  or  in  the  willful  concealment  of  the  truth  for  a  similar 
purpose.  There  is  nothing  appearing  in  the  case  imputing  to 
Beaubien  any  false  or  fraudulent  representations  in  regard 
to  his  claim  or  the  facts  upon  which  he  founded  his  right  to 
his  pre-emption;  nor  does  it  appear  that  he  concealed  at  any 
time  from  the  knowledge  of  the  officers  with  whom  he  com- 
municated, any  fact,  whatever,  necessary  to  a  f ah-  understand- 
ing of  his  claim  and  the  supposed  right  of  the  government 
under  the  reservation  as  made  at  Washington.  Equally  free 
from  and  above  all  suspicion  is  the  conduct  of  the  officers  grant- 
ing the  pre-emption  to  him.  No  design  or  contrivance  is  im- 
puted to  any  of  the  parties  in  the  transaction  and  none  has 
been  shown,  because  none  has  been  attempted.  The  transac- 
tion is  admitted  to  have  been  untainted  and  above  the  breath  of 
suspicion.  For  aught,  then,  that  we  can  see,  it  must  follow, 
upon  a  consideration  of  all  the  facts  of  the  "case  and  laws  ap- 
plicable to  it,  that  this  pre-emption  was  duly  and  formally 
granted  by  an  authority  having  exclusive  jurisdiction  and  power 
over  the  subject-matter  upon  which  it  acted  at  the  time,  and 
that  it  is  conclusive  and  binding  on  the  government.  Having 
thus  far  in  the  investigation  of  the  legal  character  of  the  c^aim 
advanced  by  the  lessor  of  the  plaintiff,  necessarily  considered 
and  examined  the  objections  urged  in  the  defense,  except  the 
first,  third  and  fourth,  we  proceed  to  the  consideration  of 
those  and  the  arguments  advanced  by  the  coun.sel  for  the 
plaintiff's  lessors  in  support  of  the  legal  title  and  a  right  to 
maintain  the  present  action.  The  first  objection,  that  no  action 
of  ejectment  -can  be  sustained  against  a  military  officer  in 
the  occupancy  of  lands,  as  such,  is  readily  disposed  of.  In 
the  case  of  Meigs  and  others  v.  Me  Clung  8  Lessee,  (9Cranch, 
11,)  in  an  action  of  ejectment,  brought  to  recover  a  tract  of 
land  which  was  claimed  under  a  grant  from  the  State  of  North 
Carolina,  upon  which  the  defendants  resided,  as  officers  and 
under  the  authority  of  the  United  States,  which  had  a  garrison 
there  and  had  erected  works  at  an  expense  of  thirty  thousand 
dollars,  one  of  the  grounds  of  the  defense  was,  because  the 
land  was  occupied  by  the  United  States  troops  and  the  de- 
fendants as  officers  of  the  United  States,  for  the 
^benefit  of  the  United  States  and  by  their  direction.  [*36fi] 
Chief  Justice  Marshall,  in  delivering  the  opinion  of 
the  Court  in  that  case,  says :  "  The  fact  that  the  agents  of  the 
United  States  took  possession  of  the  land  lying  above  the 
mouth  of  the  Ilighwassec,  erected  expensive  buildings  thereon 


87!> 


3G6  VAKDALIA. 


McConnell  ».  Wilcox. 


and  placed  a  garrison  there,  can  not  be  admitted  to  give  an  ex- 
planation to  the  treaty  which  would  contradict  its  plain  words 
and  obvious  meaning.  The  land  is  certainly  the  property  of 
the  plaintiff  below,  and  the  United  States  can  not  have  in- 
tended to  deprive  him  of  it  by  violence  and  without  compen- 
sation." The  defense  is  not  tolerated  for  a  moment;  such  an 
act  was  clearly  military  usurpation  and  illegal  and  indefensible 
in  every  point  of  view  in  which  it  could  be  placed.  This  ob- 
jection then  is  necessarily  altogether  untenable.  We  are  not 
yet  prepared  to  admit  the  maxim,  "Inter  arma  leges  tiilent." 
The  remaining  questions  are,  we  admit,  of  much  moment 
and  involve  principles  of  deep  interest.  These  objections  hav- 
ing been  sustained  in  the  Circuit  Court,  for  whose  legal  learn- 
ing and  accurate  judgment  we  entertain  the  highest  respect, 
has  rendered  it  more  important  to  examine  cautiously  the  prin- 
ciples upon  which  this  decision  is  made;  and  we  are  free  to 
confess  that  nothing  but  a  firm  and  settled  conviction  of  the 
soundness  of  their  character  and  the  evident  justice  in  which 
they  are  founded  lias  led  us  to  adopt  them  as  the  basis  of  our 
deliberate  judgment.  In  examining  the  question  whether  the 
legal  estate  is  yet  in  the  United  States  or  has  passed  by  law 
and  the  acts  of  the  land  officers,  to  the  pre-emptor,  it  may  be 
well  to  consider  the  character  of  the  proof  offered  as  evidence 
of  a  legal  title.  The  first  two  certificates  produced  in  evi- 
dence bear  date  on  the  day  of  purchase,  and  are  required  by 
the  several  acts  of  Congress  relating  to  the  sale  and  disposal 
of  the  public  lands.  The  second  of  these  is  in  strict  conformity 
with  the  mode  pointed  out  by  Congress  for  the  primary  dis- 
posal of  the  public  domain  and  should  be  considered  a  regu- 
lation provided  by  them  for  securing  the  title  to  the  bona  Jide 
purchaser.  The  third  is  the  same  as  the  preceding,  except 
that  it  is  not  issued  at  the  time  of  the  purchase;  nor  is  it  re- 
quired to  be  filed  in  the  General  Land  Office,  but  is  made  evi- 
dence of  title  in  an  action  of  ejectment  in  this  State,  by  an  act 
of  the  General  Assembly,  "declaring  what  shall  be  evidence 
in  certain  cases,"  (E.  L.  280 ;  Gale's  Stat.  287,)  and  to  which 
we  shall  have  occasion  hereafter  to  advert;  and  lastly  a  deed 
from  the  pre-emptor  to  the  lessor  of  the  plaintiff.  It  is  insisted 
by  the  defendant  that  as  the  law  of  Congress  provides  that  a 
patent  shall  issue  on  this  final  certificate,  that  the  United  States 
can  not  be  concluded  by  any  other  evidence  less  than  a  patent. 
It  will  be  recollected  that  neither  Congress  nor  the  legislature 

of  this  State  have  made  a  patent  evidence-  of  title. 
[*367]  That  it  is  evidence  in  courts  of  law,*and  of  a  conclusive 

character,  where  the  power  granting  had  title  to  the 
lands  granted  and  the  officers  authority  to  issue  it,  no  one  doubts; 
we 


JUNE  TERM,  1837.  367 

McConnell  v.  Wilcox. 

but  it  is  certainly  true  that  there  may  be  other  evidence  of 
title  equally  conclusive.  The  patent  is  not  understood  to  be 
the  title  itself,  but  the  evidence  thereof.  From  what  source 
does  the  title  to  land  derived  from  a  government  spring?  In 
arbitrary  governments,  from  the  supreme  head — belie  the  em- 
peror, king  or  potentate;  or  by  whatever  name  he  is  known. 
In  a  republic,  from  the  law  making  or  authorizing  to  be  made 
the  grant  or  eale.  In  the  first  case  the  party  looks  alone  to 
his  letters  patent;  in  the  second,  to  the  law  and  the  evidence 
of  the  acts  necessary  to  be  done  under  the  law,  to  a  per- 
fection of  his  grant,  donation  or  purchase.  If  a  grant  should 
be  made  by  the  executive  of  the  nation  for  a  tract  of  land, 
to  an  individual  by  patent,  not  warranted  by  a  previous  act  of 
Congress,  it  must  be  void  the  moment  it  is  made,  because  it 
is  not  authorized.  The  law  alone  must  be  the  fountain  from 
whence  the  authority  is  drawn;  and  there  can  be  no  other 
source.  It  will  be  found  that  numerous  cases  exist  of  legis- 
lative grants  to  States  and  individuals  by  Congress,  where 
patents  have  not  been  required  to  be  issued,  and  in  which 
cases  we  learn  the  practice,  if  we  are  rightly  informed,  is  not 
to  issue  them.  How  is  it  with  reference  to  grants  of  the  16th 
sections  in  each  township  of  the  public  lands,  those  made  to 
States  for  internal  improvements,  for  schools  and  colleges  and 
of  salines  and  towns  and  various  other  public  objects?  Will 
it  be  contended  that  in  these  cases  the  legal  title  in  the  lands 
is  not  vested  according  to  the  terms  of  the  grant,  from  the 
moment  it  becomes  a  law,  in  the  party  to  whom  the  grant  is 
made,  but  remains  in  the  government  until  a  patent  shall  be 
issued?  Surely  not.  We  take  it  for  granted  that  in  cases  of 
legislative  grants  the  law  is  not  only  evidence  of  title,  but  the 
title  itself.  "A  legislative  grant  vests  title  which  can  not 
afterward  be  divested  by  legislative  action."  (Powlett  v. 
Clark  et  al.,  3  Peters'  Cond.  E.  408.)  We  esteem  it  un- 
necessary to  pursue  this  illustration  further ;  but  ]  -roceed  to 
consider  whether  the  grants  of  lands  made  to  ]  re-em t-tors, 
under  and  by  virtue  of  the  pre-emption  laws  of  the  United 
States,  are  not  estates  in  the  lands  intended  to  be  granted  upon 
conditions  and  which  become  absolute  upon  the  performance 
of  those  conditions?  Such  would  seem  to  be  the  spirit  and 
intent  of  those  laws  when  attentively  considered.  We  are  to 
look  at  the  beneficent  character  of  those  acts  and  the  peculiar 
objects  they  were  intended  to  protect  and  secure.  A  oVs  of 
enterprising,  hardy  and  most  meritorious  and  valuable  ciii/ens 
had  become  the  pioneers  in  the  settlement  and  improvement 
of  the  new  and  distant  lands  of  the  government.  Disregard- 

881 


367  VANDALIA. 


McConnell  t>.  Wilcox. 


ing  the  privations,  toils  and  sufferings  incident  to 
[*3GS]  their  condition,  they  *had  by  their  perseverance,  not 

only  expelled  the  savage  from  their  borders,  but  had 
carried  civilization,  with  all  its  attendant  lights  and  blessings, 
into  the  wilderness.  By  their  industry  and  untiring  exer- 
tions they  improved  the  lands,  subdued  the  forests,  and  by  the 
acceleration  which  they  had  given  to  population  and  agricult- 
ure, increased  the  value  of  the  lands  in  a  tenfold  degree. 
The  government,  as  a  reward  for  these  exertions,  granted  to 
the  individuals  thus  situated  rights  on  these  lands  to  a  cer- 
tain number  of  acres,  upon  proof  of  settlement  and  cultiva- 
tion and  the  payment  of  the  minimum  price  of  the  public 
lands  within  the  time  specified  in  the  pre-emption  laws.  It 
may  be  worthy  of  inquiry  here  whether,  upon  a  full  compli- 
ance of  a  party  with  the  terms  and  conditions  of  these  laws, 
that  right  so  given  can  be  any  more  divested  than  an  express 
legislative  grant,  without  any  conditions  whatever?  Certainly 
not.  It  is  not  then  an  estate  resting  on  a  contingency,  which, 
if  it  happen  or  be  consummated,  vests  the  estate  in  fee. 

Congress  possesses  the  power  to  grant  away  these  lands,  ab- 
solutely or  conditionally,  and  they  have  done  so  in  the  case  of 
the  pre-emptioner,  upon  conditions  specified  in  the  pre-emp- 
tion laws ;  but  it  is  said  that  this  is  only  a  previous  right  of 
purchase.  Concede  this,  and  what  does  it  establish?  That 
there  is  a  right,  and  that  right  is,  that  the  party  who  settled 
and  cultivated  the  land  within  a  given  period  of  time,  on  proof 
thereof  to  the  officers  of  the  government,  to  their  satisfaction, 
and  i  ayment  of  the  money  required  therefor,  shall  be  the 
purchaser  and  hold  the  estate.  JSTow  will  it  be  denied  that 
tin's  is  an  interest  in  -land — imperfect  it  may  be,  but  to  be- 
come perfect  and  absolute  on  performance  of  the  conditions 
pre.*cribed?  When  those  conditions  have  all  been  performed 
and  the  certificates  of  the  land  officers,  which  evidence  those 
facts  have  been  executed  and  delivered,  has  not  the  grant, 
which  under  the  law  was  provisional,  become  perfect  and  ab- 
solute? and  is  not  the  law  the  source,  and  these  evidences  of 
the  conditions  performed  proof  of  his  title,  and  as  much  so  as 
in  the  case  of  an  absolute  grant?  Congress,  in  its  legislation 
on  the  subject  of  pre-emptions,  in  various  acts  speak  of  the 
pre-emptors  as  persons  having  rights  and  state  in  certain  cases 
that  their  rights  shall  be  forfeited.  (Act  of  Feb.  7, 1813  §  2 ; 
Act  of  March  3,  1803;  Act  of  May  18, 1796.)  We  understand 
also  that  it  has  been  the  practice  of  the  Land  Office  Department 
at  Washington  to  permit  assignments  of  the  certificates,  and  to 
issue  patents  where  the  assignment  is  in  conformity  to  the 
rules  prescribed  to  the  assignee,  and  that  it  so  appears  on  the 

38* 


JUNE  TEEM,  1837.  368 

McConnell  v.  Wilcox. 

face  of  the  patent.  This  is  stated  as  some  evidence  at  least  of 
the  character  of  the  interests  in  these  certificates  as  under- 
stood by  the  government  itself.  The  act  of  the  18th  of  May, 
1796,  however,  expressly  authorized  the  patent  to  issue 
to  the  heirs  or  assignees  of  the  purchaser.  *A  case  [*369] 
of  illustration  will  now  be  put.  A  is  appointed  to  of- 
fice by  action  of  a  legislative  body,  in  pursuance  of  powers 
derived  from  the  constitution  of  the  State.  Would  the  action 
of  this  body  be  the  source  of  his  right  to  the  office  or  would 
such  source  be  his  commission?  Would  not  his  commission 
be  only  evidence  of  his  title  to  the  office,  and  the  election  by 
the  legislature  the  source  of  his  right?  Certainly  so,  because 
a  commission  might  be  issued  to  a  person  not  so  elected,  who 
in  such  case  would  be  a  mere  usurper. 

We  are  led  to  the  conclusion  that  the  laws  of  Congress,  by 
every  fair  interpretation,  must  be  considered  as  saying  to  every 
pre-emptor  on  the  public  lands,  if  you  show  yourself  within 
the  provisions  of  the  pre-emption  laws,  and  that  you  have  hon- 
estly and  truly  performed  the  conditions  required  of  you  by 
law,  the  interest  or  estate  which  has  been  provisionally  given 
you,  shall  become  absolute.  It  may  be  further  asked,  whether 
this  right,  be  it  an  estate  in  the  lands  on  conditions  performed, 
or  a  mere  right  of  previous  purchase,  can,  where  it  clearly  ex- 
ists, be  taken  away  or  destroyed,  against  the  will  and  consent 
of  the  party  entitled  to  the  pre-emption?  Clearly  not.  The 
government  is  committed  by  its  own  voluntary  acts,  and  no 
third  party  can  interfere  with,  or  impair  or  destroy  it.  A  case 
of  seeming  analogy  has  been  decided  in  this  Court.  We  refer 
to  the  case  of  Doe  on  the  demise  of  Moore  v.  Hill  et  al.,  decid- 
ed at  the  December  term,  1829  (Breese,  236).  The  lessor  of 
the  plaintiff,  in  that  case,  claimed  title  to  a  tract  of  land  sold 
by  the  government  of  the  United  States  to  Hill,  who  had  pur- 
chased the  same  at  the  public  sale,  and  obtained  a  patent  there- 
for, by  virtue  of  a  confirmation  made  by  the  Governor  of  the 
Territory  northwest  of  the  river  Ohio,  in  pursuance  of  the 
acts  of  Congress  of  1788,  and  the  instructions  of  the  Governor 
of  said  Territory.  In  that  case  the  following  points  were  set- 
tled: 1st.  A  confirmation  made  by  the  Goveinor  of  the  North- 
West  Territory,  on  the  12th  of  February,  1799,  to  a  person 
claiming  a  tract  of  land  in  the  said  Territory,  is,  under  the  resolu- 
tion and  instructions  of  Congress,  of  June  and  August  of  1788, 
valid,  and  operates  as  a  release  on  the  part  of  the  United 
States  of  all  their  right.  2d.  Under  this  power  to  confirm, 
the  Governor  was  not  limited  to  any  definite  number  of  acres, 
but  could  confirm  to  the  extent  claimed  by  the  settler.  _  ^d.  A 
confirmation  so  made  by  the  Governor,  can  not  be  nullified  by 


VANDALIA. 


McConnell  v.  Wilcox. 


any  act  of  Congress.  4th.  In  order  to  show  the  act  of  con- 
firmation, it  is  not  necessary  that  any  evidence  should  be  given 
of  their  title  to  the  land,  because  the  power  of  the  Governor 
was  plenary,  and  his  decision  on  the  claim  presented  to  him, 
is  binding  on  the  United  States.  5th.  By  the  deed  of  cession 
of  1784,  from  Virginia  to  the  United  States,  Congress 
[*370]  was  obliged  *to  confirm  the  settlers  in  their  posses- 
sions and  titles.  By  an  examination  of  this  case,  it 
will  be  seen  that  by  an  act  of  Congress,  passed  sixteen  years 
after  the  powers  given  to  the  Governor  of  the  North-Western 
Territory,  to  confirm  the  lands  referred  to  in  the  act  creating  his 
duties,  a  Board  of  Commissioners  was  appointed  to  sit  at  J£as- 
kaskia,  to  hear  proof  relative  to  British  and  French  grants, 
and  report  to  the  Secretary  of  the  Treasury.  The  Court  say, 
"  That  this  Board  virtually  superseded  the  powers  of  the  Gov- 
ernor, but  nothing  appears  from  the  acts  of  Congress  in  disap- 
probation of  the  proceedings  of  the  Governor,  until  the  pas- 
page  of  an  act  on  the  20th  of  February,  1812,  which  authorized 
the  Register  and  Receiver  of  the  Land  Office  at  Kaskaskia, 
and  another  person  to  be  appointed  by  the  President  of  the 
United  States,  to  examine  and  inquire  into  the  validity  of  claims 
to  land  in  the  district  of  Kaskaskia,  which  are  derived  from 
confirmations  made,  or  pretended  to  be  made,  by  the  Governor 
of  the  North-Western  and  Indiana  Territories  respectively,  and 
they  shall  report  to  the  Secretary  of  the  Treasury,  to  be  laid 
by  him  before  Congress."  The  Court  proceed  to  say,  "  That 
the  soundest  principles  of  policy,  as  well  as  good  faith,  require 
that  the  Governor's  confirmations  should  be  considered,  at 
least  prima  fa^e,  valid."  The  report  of  the  Commissioners 
is  next  adverted  to,  and  it  is  further  stated,  "That  the  Secre- 
tary of  the  Treasury  considered  those  confirmations  void,  and 
directed  the  sale  of  the  lands;  but  the  Secretary  of  the  Treas- 
ury had  no  power  to  order  the  sale  of  any  lands  except  those 
belonging  to  the  United  States ; "  and  his  act  in  ordering  the 
sale  is  treated  as  a  void  act ;  and  it  is  further  said,  "  That  the 
confirmation  was  a  release  of  the  interest  of  the  United  States, 
and  the  presumption  was,  that  the  deed  of  confirmation  was 
made  in  a  case  authorized  by  the  resolutions  of  June  and 
August,  1788."  To  our  rninds,  there  is,  on  principle,  an  analogy 
in  the  two  caees,  so  far  as  the  acts  and  discretionary  powers  of 
the  agents  of  the  government  are  to  be  viewed,  and  the  char- 
acter in  which  these  acts  are  to  be  considered  in  point  of 
evidence  relating  to  titles  to  land  originally  held  by  the  gov- 
ernment or  claimed  to  be  so  held.  In  the  case  referred  to,  the 
certificate  of  confirmation  by  the  Governor  is  held  to  be  at 
least  prima  facie  evidence  of  title  to  the  estate  in  the  lands 


384 


JUNE  TERM,  1837.  370 

McConnell  r.  Wilcox. 

Maimed  ;  and  in  the  present  one,  it  is  not  perceived  why  the 
same  rule  should  not  obtain.  The  patent  of  the  government 
to  a  subsequent  innocent  purchaser  is  held  invalid ;  because  the 
government  could  not  grant  the  same  land  twice  ;  and  because 
the  patent  for  that  reason  was  void.  In  the  case  of  the  United 
States  v.  Arredondo  (6  Peters,  727),  the  Supreme  Court  of  the 
United  States  held  this  language :  "If  it  was  not  a  legal  pre- 
sumption, that  public  and  responsible  officers  claiming 
and  exercising  the  *right  of  disposing  of  the  public  [*371] 
domain,  did  it  by  the  order  and  consent  of  the  gov- 
ernment in  whose  name  the  acts  were  done,  the  confusion  and 
uncertainty  of  titles  and  possessions  would  be  infinite."  "  The 
acts  of  public  officers  in  disposing  of  public  land,  by  color  or 
claim  of  public  authority,  are  evidence  thereof,  until  the  con- 
trary appears  by  the  showing  of  those  who  oppose  the  title  set 
up  under  it,  and  deny  the  power  by  which  it  is  professed  to 
be  granted.  Without  the  recognition  of  this  principle,  there 
would  be  no  safety  in  title  papers,  and  no  security  for  the  en- 
joyment of  property  under  them."  The  law  of  Congress  re- 
quiring patents  to  issue,  was  passed  when  the  old  credit  system 
of  disposing  of  the  public  lands  existed,  and  that  patent  was 
to  issue  on  the  certificate  of  final  payment.  We  think  it  im- 
portant that  the  laws  providing  for  the  sales  of  the  public  lands 
under  the  old  and  new  system,  should  be  noticed,  and  the  dis- 
tinction kept  in  view.  Under  the  old  system,  the  purchase, 
being  on  credit  for  three  fourths  of  the  purchase  money,  was 
contingent ;  but  under  the  present,  it  is  for  cash  in  full,  and 
perfect  and  absolute.  The  patent  was,  however,  on  the  final 
payment,  to  be  issued  to  him  or  his  heirs  or  assigns.  *  It  may 
be  important,  as  an  early  evidence  of  the  intentions  and  views 
of  Congress  on  the  subject  of  the  sales  of  the  public  lands, 
and  to  show  in  what  light  they  considered  the  sales  thereof,  to 
note  the  act  of  the  18th  of'  May,  1796.  After  prescribing 
the  terms  on  which  the  land  shall'  be  sold,  it  directs  the  form 
of  the  certificate  which  shall  be  given,  and  requires  the  land 
sold  to  be  described — the  sum  paid  on  account — the  balance 
remaining  due — the  time  when  such  balance  becomes  payable, 
and  that  the  whole  land  sold  will  be  forfeited  if  the  said  bal- 
ance is  not  then  paid ;  but  that  if  it  shall  be  duly  discharged, 
the  purchaser  or  his  assigns,  or  other  legal  representative,  shall 
be  entitled  to  a  patent.  "  On  payment  of  the  balance,  a  patent 
is  directed  to  be  issued.  It  declares,  if  there  should  be  a  fail- 
ure in  any  payment,  the  sale  shall  be  void,  all  money  thereto- 
fore paid  on  account  of  the  purchase,  shall  be  forfeited  to  the 
United  States ;  and  the  land  thus  sold  shall  be  again  disposed 
of  in  the  same  manner  as  if  a  sale  had  never  been  made." 
VOL.  I.-25  885 


371  V  A  XI)  A  LI  A. 


McConnell  r.  Wilcox. 


Hero  we  see  that  a  direct  and  positive  sale  is  recognized,  and 
the  land  sold  in  case  of  non-payment  of  any  part  of  the  bal- 
ance, is  declared  to  be  forfeited. 

It  is  manifest,  from  this  language,  that  Congress  considered 
the  purchaser  as  having  a  legal  estate  in  the  lands  purchased, 
of  some  description,  under  this  certificate;  otherwise  they  would 
not  have  declared  in  what  cases  the  land  should  be  forfeited. 
Such,  however,  seems  to  be  the  whole  course  of  legislation  on 
the  public  lands,  and  in  almost  every  act  the  right  acquired  by 
the  purchaser  seems  to  be  viewed  as  a  conditional  or  absolute 
estate  in  the  lands ;  and  the  invariable  practice  has  been 
[*372]  for  the  *  purchaser  under  all  the  systems  and  regu- 
lations for  the  sale  of  these  lands,  to  enter  into  posses- 
sion of  them,  either  before  or  after  the  purchase,  if  he  so  desired. 
It  would  be  singular  indeed,  if  the  purchasers  of  the  millions  of 
acres  of  the  public  domain,  which  have  been  recently  paid  for  by 
them,  and  for  which  they  have  received  the  evidence  thereof 
from  the  public  officers  of  the  government,  should  be  told  that 
they  had  only  some  inchoate,  indefinite,  and  imperfect  and  equi- 
table title  to  the  lands  thus  sold  by  the  government,  and  that  the 
legal  estate  was  yet  in  the  government;  and  that  as  the  gov- 
ernment could  not  be  coerced  by  suit  to  issue  a  patent,  and  the 
public  officers  might  use  their  discretion  to  issue  or  not  issue 
the  patent,  intruders  on  the  lands  could  not  be  removed,  and 
might  enjoy  unmolested  the  possession  thereof,  commuting 
what  destruction  and  injury  they  pleased,  until  they  could 
produce  a  formal  patent  therefor.  The  mere  statement  of 
Hich  a  supposition  would  have  a  most  startling  effect;  and 
those  thus  situated  would  indeed  gravely  ask  whether  they 
lived  under  a  government  of  laws  in  which  justice  was  equally 
dispensed,  and  the  rights  of  all  protected  alike  ?  To  silence 
forever  and  put  at  rest  these  quaint  and  refined  subtleties,  and 
to  protect  the  purchasers  of  the  public  domain  within  the 
limits  of  this  State,  the  General  Assembly,  with  a  forecast 
worthy  of  all  praise,  as  early  as  1823,  (and  which  was  incorpo- 
rated in  the  revised  code  of  1827,)  passed  "An  act  declaring 
what  shall  le  evidence  in  certain  cases."  (R.  L.  280 ;  Gale's 
Stat.  287.)  By  the  fourth  section  of  that  act,  it  is  provided, 
"  That  the  official  certificate  of  any  Register  or  Receiver  of 
any  Land  Office  of  the  United  States,  to  any  fact  or  matter  of 
record  in  his  office,  shall  be  received  in  evidence  in  any  court 
in  this  State  ;  and  shall  be  competent  to  prove  the  fact  so  cer- 
tified. The  certificate  of  any  such  register  of  the  entry  or 
purchase  of  any  tract  of  land  within  his  district,  shall  be 
deemed  and  taken  to  be  evidence  of  title  in  the  party  who 
made  such  entry  or  purchase,  or  his  heirs  or  assigns,  to  recover 

386 


JUNE  TEEM,  1837.  372 

McConnell  v.  Wilcox. 

the  possession  of  the  land  described  in  such  certificate,  in  any 
action  of  ejectment  or  forcible  entry  and  detainer,  unless  a 
better  legal  and  paramount  title  be  exhibited  for  the  same." 
To  this  statute  this  Court  has,  in  the  case  of  Bruner  v.  Ma/n- 
love,  ante,  156,  given  an  exposition  by  the  unanimous  opinion 
of  the  Court,  which  every  day's  experience  shows  to  be  based 
on  the  firmest  principles  of  policy  and  justice.  In  that  case  it 
was  said,  "That  the  register's  certificate  is  raised  to  as  high  a 
point  of  evidence  in  this  form  of  action,  as  a  patent  possibly 
could  be.  Its  effect  is  to  be  the  same,  and  the  rights  derived 
from  it,  for  the  purpose  of  recovering  or  maintaining  pos- 
session of  lands  described  in  it,  are  co-extensive  with  the 
most  formal  regularly  issued  patents.  These  certificates  not 
only  vest  the  title  acquired  by  purchase  from  the 
*govermnent,  in  the  purchaser  for  the  purpose  named,  [*373] 
but  make  that  title  transmissible  to  the  heirs  or  the 
assignee.  For  any  purpose  then,  so  far  as  regards  the  character 
of  these  certificates,  as  evidence  in  an  action  of  ejectment,  they 
must  be  considered  of  as  high  a  dignity  as  patents,  and  partaking 
of  all  their  legal  attributes.  Having  settled  their  character  and 
effect,  the  rights  of  the  parties  under  them  must  be  governed 
by  the  same  rules  of  interpretation  as  in  the  case  of  patents. 
No  reason  can  exist  for  an  exception."  "Whatever  doubt  may 
have  existed  as  to  the  character  of  the  right  or  interest 
acquired  by  the  purchaser  of  land  from  the  government  of  the 
United  States,  and  the  light  in  which  the  certificates  of  the 
land  officers  should  be  considered  as  evidence  in  the  courts 
of  this  State,  we  apprehend  has  been  forever  put  to  rest  by 
this  necessary  and  provident  law.  We  appeal  to  the  unso- 
phisticated and  sober  judgment  of  every  rational  and  unbiased 
mind,  and  ask,  whether  the  idea  that  purchases  so  held  by 
these  evidences  of  title,  which  have  doubtless  passed  through 
various  and  numerous  hands,  are  to  be  for  a  moment  thus 
impaired  by  the  toleration  of  such  arguments  against  their 
validity? 

It  is  a  matter  of  universal  notoriety,  that  these  are  the  only 
evidences  of  title,  in  nine  cases  out  of  ten,  held  by  the  pur- 
chasers of  the  public  lands,  for  some  years  past;  and  that  it  has 
become,  and  will  remain  impossible  for  years  to  come,  under 
the  present  force  in  the  General  Land  Office,  to  issue  patents 
for  millions  of  acres  of  land  thus  purchased.  The  necessity 
of  the  case,  then,  most  imperiously  admonishes  us  of  the  pro- 
found wisdom  and  necessity  of  the  act.  It  has  therefore  been 
considered  altogether  unnecessary  to  refer  to  and  adduce  the  nu- 
merous decisions  of  the  various  courts  in  the  United  States,  de- 
parting from  the  rigid  doctrines  of  the  common  law  as  to  what 

887 


373  YANDALIA. 


McConnell  ».  Wilcox. 


should  be  considered  evidence  of  title  in  an  action  of  eject- 
ment; among  which  the  most  prominent  is,  the  case  of 
Sim's  Lessee  v.  Irvine,  in  which  it  was  adjudged  that  pay- 
ment of  the  purchase  money  to  the  State,  and  survey  of  the 
land,  gave  a  legal  right  of  entry,  and  was  sufficient  evidence 
in  an  action  of  ejectment.  The  Supreme  Court  of  the  United 
States,  in  reviewing  this  case,  say,  "  This  having  become  in 
Pennsylvania  an  established  legal  right,  and  having  incorpo- 
rated itself  as  such  with  property  and  tenures,  must  be  regard- 
ed bv  the  common  law  courts  of  the  United  States  in  Penn- 
sylvania, as  a  ruling  decision."  Numerous  other  cases  might 
be  cited,  decided  by  the  Supreme  Court  of  the  United  States, 
in  which  it  is  held  that  evidence  of  titfe  to  land,  is  to  be  gov- 
erned by  the  "  Lex  locirei  sitae."  That  the  law  of  the  State 
where  the  land  lies,  is  to  govern  both  as  to  the  form  of  the 
remedy,  and  the  evidence  of  title  seems  to  be  so  well  settled 
by  a  long  and  uniform  course  of  decisions,  that  we  have  sup- 
posed it  beyond  the  possibility  of  doubt.  The  Cir- 
[*374]  cuit  Court  have,  in  our  *opinion,  fallen  into  an  error 
on  this  point,  which  has,  in  our  judgment,  arisen  from 
the  light  in  which  it  has  viewed  the  pre-emptor's  purchase. 
It  seems  to  have  confounded  this  purchase  with  the  imper- 
fect, uncertain  and  anomalous  modes  heretofore  pursued  in 
acquiring  lands  in  the  States  of  North  Carolina,  Kentucky 
and  other  States  of  the  Union,  where  those  States  were  the 
proprietors  of  the  soil ;  and  it  has  adopted  the  opinion  of  the 
Supreme  Court  of  the  United  States  on  those  inceptive  and 
inchoate  titles,  as  the  rule  to  be  applied  in  the  present  case, 
without  regarding  the  manifest  distinction.  In  these  cases, 
the  person  entering  was  to  procure  a  warrant  of  survey,  and 
pay  money  at  a  future  day ;  and  from  the  inception  of  the 
title  by  entry,  his  right,  though  it  might  be  considered  legal, 
was  necessarily  inchoate.  In  the  case  before  us,  the  purchase 
and  acquisition  of  the  title  is  an  entire  act,  performed  at  one 
and  the  same  time ;  the  certilicate,  as  evidence  of  that  pur- 
chase and  acquisition,  is  given  on  the  payment  of  the  consid- 
eration money,  and  the  sale  being  completed,  the  title  passes, 
and  the  certificate  is  evidence  thereof,  at  least  prima  facie, 
and  warrants  a  right  of  entry  on  the  land.  By  the  terms  of 
the  ordinance  admitting  the  State  of  Illinois  into  the  Union,  it 
was  among  other  things  stipulated,  "  That  every  and  each 
tract  of  land  sold  by  the  United  States,  from  and  after  the 
first  day  of  January,  1819,  shall  remain  exempt  from  any  tax 
laid  by  order  or  under  the  authority  of  the  State,  for  any  pur- 
pose whatever,  for  the  term  of  five  years  from  and  after  the 
day  of  sale.  (R  L.  51 ;  Gale's  Stat.  39).  Now  at  what  time 

888 


JUNE  TEEM,  1837.  374 

McConnell  v.  Wilcox. 

would  th  is  exemption  begin  to  run?  Certainly  from  the  day  of 
sale,  and  not  from  the  time  of  issuing  the  patent.  As  long  as 
the  estate  is  in  the  United  States,  the  lands  are  not  taxable  ;  and 
if  the  legal  estate  did  not  pass  at  the  time  of  the  purchase  and 
sale,  the  land  could  not  be  taxed  until  the  patent  issues.  The 
proposition  that  the  estate  remains  in  the  United  States,  until  the 
patent  issues,  could  never  be  adopted  as  a  rule  from  whence  to 
compute  the  time  for  such  purpose,  because  of  its  extreme  uncer- 
tainty and  perpetual  variableness.  The  sale  must  be  consid- 
ered as  severing  the  particular  tract  purchased,  from  the  mass 
of  the  public  lands,  "  eo  instanti"  as  has  well  been  remarked, 
from  which  time  the  five  years  are  to  be  computed,  and  a  di- 
vestiture of  the  title  of  the  United  States  ensues,  and  the  pur- 
chaser's title  necessarily  vests  thereby.  The  legislature  in  the 
enactment  of  the  law  just  quoted,  must  have  so  considered  it, 
and  with  the  view  to  remove  all  doubt,  never  presumed  their 
constitutional  right  to  pass  it,  could  be  questioned.  It  is, 
however,  said,  that  while  this  act  is  admitted  to  be  just  and 
politic  as  between  individuals,  it  can  not  be  applied  where  the 
rights  of  the  government  are  in  issue.  It  is  also  admitted  that 
the  State  had'the  undoubted  right  to  pass  the  law,  and 
to  prescribe  *what  should  be  the  rules  of  evidence  [*375] 
in  the  courts  of  the  State ;  but  that  it  can  not  be 
obligatory  on  the  United  States,  because  it  violates  the  ordi- 
nance of  1787,  being  an  "interference  with  the  primary  dis- 
posal of  the  soil  by  the  United  States,  and  the  regulations 
which  Congress  has  adopted  to  secure  the  title  to  the  bona 
fide  purchasers." 

We  lay  it  down  as  an  incontrovertible  position,  that  the 
character  of  a  general  law,  and  the  force,  effect  and  application 
thereof,  are  not  to  be  determined  by  the  character  of  the 
parties  to  the  action.  It  would  be  strange,  indeed,  if  such  a 
rule  could  prevail;  it  must  be  of  universal  application,  within 
the  State  which  has  adopted  it  as  a  rule  of  action,  if  it  has  been 
constitutionally  adopted,  and  the  courts  of  the  States  being 
bound  to  regard  laws  so  passed,  must  so  consider  them.  Unless, 
then,  the  act  is  void,  for  the  reason  that  it  conflicts  with  the 
Ordinance  of  1787,  its  binding  force  on  all  parties  in  the  State 
courts,  is  undeniable.  Let  the  alleged  conflict  of  the  provisions 
of  this  law,  with  the  ordinance,  be  now  considered ;  and  here 
we  confess  we  are  at  a  loss  to  conjecture  in  what  part  of  the 
provision  of  the  section  of  the  law  that  conflict  is  to  be  found. 
In  what  manner  does  it  interfere  with  the  primary  disposal  of 
the  soil?  Does  it  not  adopt  the  mode  proscribed  by  Congress, 
and  declare  that  this  mode  shall  be  evidence  of  title,  until  a 
better  one  is  shown  3  Has  it  said  the  lands  shall  not  be  sold  ? 

Hi 


VANDALIA. 


McConnell  v.  Wilcox. 


No.  Has  it  attempted  to  prescribe  to  the  government  of  the 
United  States  in  what  manner  such  sales  shall  be  made?  No. 
Has  it  by  indirect  means  or  oppressive  provisions,  in  any  way 
whatever,  embarrassed  the  sales  made  or  proposed  to  be  made? 
No.  Has  it  imposed  a  tax  on  the  lands,  or  prohibited  an  entry, 
or  prevented  the  purchaser  from  occupying  the  same  ?  No. 
In  what  then  does  this  interference  consist?  In  nothing.  On 
the  contrary  it  has  recognized  the  right  of  the  government  to 
the  fullest  possible  extent,  to  sell  and  dispose  of  those  lands ; 
and  has  not  only  recognized,  to  the  fullest  extent,  the  rights 
of  the  purchaser  under  such  sales,  but  has  provided  a  means  for 
him  to  acquire  his  possession  when  his  right  is  disputed 
unjustly ;  and  as  a  measure  of  preventive  justice,  protected 
him  from  the  acts  of  the  lawless  intruder,  without  leaving  him 
to  the  tardy  and  uncertain  process  of  the  production  of  his 
patent,  from  the  notoriety  of  the  difficulty  of  obtaining  which, 
he  might  have  to  wait  in  years  of  expectation,  without 
remedy.  But  we  are  told  that  it  "  interferes  with  the  regula- 
tions adopted  to  secure  the  title  to  the  bonafide  purchasers." 
With  what  regulation  does  it  interfere  ?  Does  or  can  it  pre- 
vent the  issue  of  the  certificate  or  patent  ?  Is  it  an  interfer- 
ence because  it  is  ancillary  to  the  assertion  of  the  rights  of 
which  the  patent  would  be  evidence,  and  removes  the  difficulty 
under  which  the  party  must  labor  until  its  obtention — because 

it  protects  the  party  in  his  purchase,  advances  the 
[*376]  means  *of  proof  Of  his  legal  interest  and  right  of 

entry  on  the  lands  by  him  honestly  and  fairly  pur- 
chased, and  dispenses  with  the  law's  delays  attendant  on  the 
production  of  the  patent,  and  above  all,  adds  greatly  to  the 
security  of  the  party's  rights  and  possessions?  Can  it  be 
asserted,  with  reason,  that  this  beneficial  and  remedial  law,  is 
an  interference  with  the  regulations  of  Congress  to  secure  the 
title  to  the  purchasers  of  the  public  domain?  In  vain  shall 
language  be  tortured,  to  prove  satisfactorily  such  a  result.  But 
if  it  were  admitted,  for  the  sake  of  argument,  to  be  so,  it  is 
equally  so  in  the  case  decided  between  Bruner  and  Mtsnlove. 
This  Court  did  not,  in  that  case,  so  esteem  it ;  nor  yet  in  the 
case  of  Doe  on  the  demise  of  Moore  v.  Hill,  in  wJ  c  • 
adjudged  the  certificate  of  Governor  St.  Clair,  more  elect  a' 
than  the  patent  issued  by  the  President  for  the  same  land  some 
years  since.  The  judiciary  committee  of  the  United  States 
Senate,  in  a  report  by  Judge  Bui-net,  of  Ohio,  as  chairman 
thereof,  on  the  class  of  claims  of  which  this  thus  decided 
formed  one,  expressed  opinions  in  exact  coincidence  with  that 
decision.  The  decision  of  this  Court  in  that  case,  and  the 
report,  were  made  nearly  simultaneously.  If  the  law  be  an 

M 


JUNE  TEEM,  1837.  376 

McConnell  v.  Wilcox. 

interference  in  any  case,  it  must  be  so  in  all.  The  conclusion 
is  inevitable.  It  can  not  be  valid  in  one  case,  and  invalid  in 
another  precisely  similar,  though  the  parties  may  differ  in 
name  and  person.  The  incongruity  and  unsoundness  of  the 
assertion,  seems  too  apparent  to  require  further  comment.  It 
is  also  contended  that  the  better  legal  and  paramount  title  to 
the  lands  in  question,  is  in  the  government,  and  that  this  has 
been  shown.  It  may  be  worthy  of  consideration,  to  ask,  what 
the  framers  of  this  law  considered  a  better  legal  and  paramount 
title  ?  Is  it  rational  to  suppose  that  they  conceived,  when  they 
were  providing  an  additional  and  auxiliary  means  of  proof  for 
the  purchaser  of  the  public  domain,  and  by  which  he  was 
either  to,  obtain  his  possessions,  having  the  right  in  himself,  or 
to  protect  himself  therein,  that  they  contemplated  the  idea, 
that  although  the  party  had  purchased  and  paid  the  govern- 
ment for  the  land,  the  better  legal  and  paramount  title 
remained  in  the  government ;  and  that  against  the  assertion  of 
such  title,  he  should  be  protected?  It  would,  in  our  estimation, 
be  putting  an  intention  into  the  minds  of  the  legislators  of  too 
unjust  and  ungenerous  a  suspicion  against  the  government, 
which,  from  the  uniform  character  of  its  acts,  and  high  sense 
of  the  principles  of  universal  justice,  would  have  been  as 
derogatory  to  those  entertaining  such  opinions,  as  it  could  not 
fail  to  be  to  those  who  should  act  on  them.  This  view  could 
never  have  entered  into  their  conception.  But  as  the  history 
of  the  country  had  shown,  and  as  the  case  of  Doe  .on  the 
demise  of  Moore  v.  I  Till  ^  before  referred  to,  proves,  there 
were  many  British  and  French  grants  which  had  been  located 
on  the  public  lands  in  this  State,  some  of  which  the 
government  had  *recognized,  and  others  having  been  [*377] 
considered  void,  the  government  had  sold,  and  intend- 
ed to  sell  the  lands  thus  claimed.  The  case  of  Hill  shows  a 
case  of  the  kind,  and  is  one  of  the  class  of  cases  intended  by 
the  description  of  a  better  legal  and  paramount  title  ;  for  by 
the  decision  of  this  Court  in  that  case,  it  overreached  the  patent 
of  the  United  States,  and  was  therefore  decided  to  be  the  bet- 
ter legal  and  paramount  title.  This  case  abundantly  illustrates 
what  the  legislature  of  Illinois  intended  by  the  bettor  legal 
and  paramount  title.  This  accords  with  the  sense  of  the  terms 
used,  and  the  intentions  of  the  framers  of  the  act.  The  words, 
the  context,  the  subject  matter,  the  effects,  and  the  conse- 
quences, and  the  reason,  and  the  spirit  of  the  law, all  establish,  to 
our  minds,  the  interpretation  we  have  put  on  it ;  we  think  it 
can  justly  admit  of  no  other.  Hence  we  conclude,  that  the 
application  of  this  part  of  the  statute  to  the  case,  as  showing 
the  title  in  the  government,  and  adverse  to  the  right  of  recov- 

391 


377  VAXDALIA. 


McConnell  r.  Wilcox. 


ery,  is  by  no  means  warranted.  For  the  reasons  given,  there 
can  be  no  paramount  title  in  this  case,  because  the  government 
had  parted  with  all  they  had,  according  to  the  forms  of  law 
prescribed  for  the  mode  of  disposing  ot  the  public  lands,  and 
are  concluded  and  estopped  by  the  acts  of  their  own  officers. 
Other  examples  are  not  wanting  of  similar  provident  and  use- 
ful legislation  of  this  State,  in  reference  to  titfe  to  land.  By 
acts  in  force.  July  1st,  1827  and  1829,  (K.  L.  130,  510;  Gale's 
Srat.  141>,  555,)  it  is  provided  that  conveyances  of  lands  shall 
be  valid  notwithstanding  the  grantor  is  out  of  possession  at 
the  time  of  the  grant,  or  the  lands  are  held  adversely,  and  that 
the  words  "grant,  bargain  and  sell,"  shall  be  held  an  express 
covenant  to 'the  grantee,  his  heirs  and  assigns,  that  the  grantor 
was  seized  of  an  indefeasible  estate  in  fee  simple,  freed  from 
inctimbrances  from  the  grantor,  except  rents  and  services  that 
may  be  reserved,  unless  limited  by  express  words  contained  in 
such  deed. 

We  hold,  in  regard  to  municipal  rights  and  obligations,  that 
the  government  as  a  moral  being  mutt  be,  in  contracting,  sub- 
ject, in  the  absence  of  a  law  of  Congress  in  relation  thereto, 
to  the  laws  of  the  States,  and  that  the  same  principles  and 
rules  of  interpretation  of  contracts  and  acts  growing  out 
of  them,  as  prevail  between  individuals,  must  be  applicable  to 
it.  "Thus,  if  the  United  Stales  becomes  the  holder  of  a  bill 
of  exchange,  they  are  bound  to  the  same  diligence  as  to  giving 
notice,  in  order  to  charge  an  indorser  upon  the  dishonor  of 
the  bill,  as  a  private  holder  would  be."  (Story's  Const.  408.) 
With  these  views  we  arrive  at  the  conclusion  that  the  third 
ground  of  objection  fails.  In  connection  with  this  part  of  the 
ca^e  an  argument  has  been  started  by  one  of  the  counsel  for 
the  lessor  of  the  plaintiff,  which  if  entered  into  would  em- 
brace a  wide  field  of  inquiry,  not  only  interesting  for  the  char- 
acter of  the  question  it  discusses,  but  certainly  involv- 
[*378]  ing  *a  subject  of  grave  import,  affecting  the  rights 
of  the  Western  States.  The  question  whether,  if  at 
all,  or  how  far  the  Western  States  are  bound  by  the  Ordinance 
of  1787, after  they  have  become  sovereign,  free  and  independ- 
ent States  ;  and  whether  the  exercise  of  the  powers  appertain- 
ing to  all  sovereign  States,  connected  with  the  principles  of  em- 
inent and  high  domain,  may  not  be  asserted  by  the  States,  are 
subjects  which  we  hope  may,  by  a  just  and  liberal  policy  on 
the  part  of  the  general  government  toward  the  new  States, 
give  repose  to  the  disturbing  character  which  the  agitation  of 
this  question  is  calculated  to  produce.  The  exercise  of  pow- 
ers and  jurisdiction  by  the  new  States  over  the  public  lands 
within  their  respective  limits,  for  the  purpose  of  inteicommu, 

392 


JUKE  TERM,  1837.  378 


MoConnell  r.  Wilcox. 


nicatioii  between  their  citizens  by  the  means  of  roads,  and  the 
political  and  legal  organization  of  now  counties  in  this  State, 
on  and  over  districts  of  country  not  even  yet  surveyed,  lias 
been  so  long  permitted  and  acquiesced  in  as  to  rij.eii  into  an 
acknowledged  right ;  and  we  are  not  aware  that  for  any  other 
object  it  would  be  useful  to  examine  questions  which  it  is  sin- 
cere'y  hoped  may  remain  undisturbed. 

As  to  the  last  and  remaining  ground  assumed  in  defense  it 
must  be  conceded  that  the  United  States  could  not  be  a  defend- 
ant in  a  State  court  in  any  action  whatever,  such  court  having 
no  jurisdiction  over  her,  and  consent  could  not  give  it.  And 
although  it  is  certainly  true  that  the  tenant,  in  all  actions  of 
ejectment,  may  defend  him-elf  by  showing  the  title  of  his 
landlord,  it  does  not  follow  that  the  party  who  could  not  be  a 
defendant  for  want  of  jurisdiction  in  the  Court  over  him,  may 
defend  himself  in  such  case  in  the  name  of  a  person  who,  upon 
no  reasonable  supposition,  could  be  considered  as  standing  in 
the  nature  of  a  tenant.  Can  it  be  that  a  military  officer, 
charged  with  the  command  of  troops  in  the  occupation  of  a 
garrison,  is  the  tenant  of  a  power  which  not  only  commands 
his  movements  at  will,  but  whose  physical  action,  if  the  term 
be  admissible,  is  entirely  dependent  on  the  direction  of  his 
superior,  and  that  the  relation  of  landlord  and  tenant  is  created  by 
this  military  connection?  Is  not  the  idea  repugnant  to  all  our 
notion.-,  of  legal  rights  whether  drawn  from  the  civil,  statute  or 
common  law?  And  although  it  has  been  held  that  every  per- 
son may  be  considered  a  landlord  for  the  purpose  of  being  ad- 
mitted to  defend  an  ejectment,  whose  title  is  connected  to  and 
consistent  with  the  possession  of  the  occupier,  can  it  be  that 
the  United  States  could  so  appear  where  jurisdiction  is  not 
given?  If  not,  how  is  it  that  the  converse  of  the  rule  is  ap- 
plied ?  Ard  that  if  the  officer  can  not  defend  by  showing  title 
in  another,  that  another  may  defend  in  the  name  of  him  who 
has  neither  title  nor  defense?  It  is,  however,  deemed  of  little 
importance  to  decide  this  [articular  question,  because  all  those 
affecting'  the  real  merits  of  the  controversy,  and 
*the  rights  of  the  parties  are  considered  to  have  been  [*379] 
fully  and  particularly  examined  and  decided.  In  ar- 
riving at  a  final  conclusion  in  this  case  it  is  but  just  to  remark 
that  the  principles  upon  which  it  turns  can  not  for  a  moment 
be  supposed  to  be  in  any  way  aflecled  by  the  value  of  the  lands 
in  controversy,  be  itsma!)  (.r  great.  Satisfied  of  the  legality  and 
justice  of  the  case  presented  by  the  lessor  of  the  plaintiff,  and 
that  the  granting  of  the  ]  re-em  ption  to  Beaubien  was  a  matter  of 
eimnle  right,  disconnect*  d  with  the  equity  with  which  his  claim 
would  be  necessarily  connected,  marked  as  it  is  with  the  continued 


379  VANDALIA. 


McConnell  r.  Wilcox. 


and  protracted  occupation  during  a  period  of  nineteen  years — a 
much  greater  portion  of  which  the  spot  so  by  him  occupied 
was  in  the  midst  of  a  wilderness,  exposed  to  all  the  dangers 
and  vicissitudes  necessarily  connected  with  a  location  so  im- 
mediately surrounded  by  savages,  and  that  this  view  of  the 
whole  case  can  not  be  considered  repugnant  to  the  universal 
principles  of  justice  and  the  sense  of  right  entertained  by  the 
government  itself;  it  is  the  opinion  of  a  majority  of  the 
Court  that  the  judgment  of  the  Circuit  Court  be  reversed ; 
and  this  Court,  proceeding  to  render  such  judgment  as  the  Cir- 
cuit Court  ought  to  have  rendered,  do  order  and  adjudge  that 
judgment  be  rendered  herein  for  the  lessor  of  the  plaintiff, 
that  he  recover  his  term  of  years  unexpired  and  yet  to  come 
in  the  premises  in  the  declaration  described,  with  his  costs  of 
suit  in  this  Court  and  the  Court  below,  and  that  a  writ  of  pos- 
session and  execution  be  awarded  for  such  purpose. 

Judgment  reversed. 

This  case  was  heard  at  the  last  December  term.  LOCKWOOD, 
J.,  dissented;  and  WILSON,  C.  J.,  being  interested,  took  no 
part  in  the  decision. 

NOTE  BY  SCAMMON.  Since  the  decision  of  this  case,  the  following  act  has 
become  a  law  : 

AN  ACT  to  amend  an  act,  entitled  "An  act  declaring  wha,t  shall  be  evidence 
in  certain  eases,"  approved  January  10,  18'27. 

SEC.  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois,  represented 
in  the  General  Assembly,  That  a  patent  for  land  shall  be  deemed  and  con- 
sidered a  better  legal  and  paramount  title  in  the  patentee,  his  heirs  or  as- 
signs, than  the  official  certificate  of  any  register  of  a  land  office  of  the 
United  States,  of  the  entry  or  purchase  of  the  same  land. 

APPROVED,  by  the  Council,  February  27, 1839. 
Acts  of  1838-9,  196. 

A  purchaser  of  land  from  the  government  of  the  United  States  or  of  this 
State,  acquires  a  right  to  all  the  improvements  made  upon  it  anterior  to  his 
purchase.  The  act  of  February  23,  1819,  giving  the  right  to  remove  fences 
made  by  mistake  upon  the  land  of  other  persons,  applies  only  to  natural  per- 
sons; it  has  no  relation  to  a  case  where  a  fence  is  erected  by  mistake  upon 
the  lands  of  the  United  States,  or  of  this  State.  Blair  v.  Worle^,  ante  178. 

It  is  a  principle  of  the  common  law,  that  the  government  can  not  be 
guilty  of  laches.  It  is  also  well  settled  that  a  State  is  not  barred  by  a  stat- 
ute of  limitations,  unless  expressly  named.  Madison  County  r.  Bartlett, 
ante  67;  State  Bank  of  Illinois  r.  Brown  et  al.,  ante  106.  See  also  U.  S.  v. 
Kirkpatrick  et  al.,  9  Wheat.  720;  5  Peters'  Cond.  R.  733;  Dox  et  al.  v.  The 
P.  AL  G.,  1  Peters,  325. 

The  certificate  of  the  Register  of  a  Land  Office,  of  the  purchase 
1*380]  of  a  portion  *of  the  public  lands  of  the  United  States,  is,  under  the 
statute  of  this  State,  of  as  high  a  character  in  point  of  evidence  as 
a  patent  in  an  action  of  ejectment,  and  is  to  be  governed  by  the  same  rules 
of  interpretation.  The  elder  certificate  is  conclusive  against  a  subsequent 
one.  Bruner  r.  Manlove  et  al.,  ante  156. 

As  to  the  estate  of  a  pre-emptioner,  see  Davenport  v.  Farrar,  ante  314. 

The  title  to,  and  disposition  of,  real  property,  by  deed  or  will,  must  be 
8M 


JUNE  TEEM,  1837.  380 

McConnell  v.  Wilcox. 

exclusively  subject  to  the  laws  of  the  country  where  it  is  situated.     Kerr  v 
Devisees  of  Moon,  9  Wheat.  565;  5  Peters'  Cond.  682. 

It  is  an  acknowledged  principle  of  law,  that  the  title  and  disposition  of 
real  property  is  exclusively  subject  to  the  laws  of  the  country  where  it  is  sit- 
uated, which  can  alone  prescribe  the  mode  by  which  a  title  to  it  can  pa*s 
from  one  person  to  another.     McCormick  et  al.  v.  Sullivan  et  si..  10  Wheat 
192;  6  Peters'  Cond.  R.  71. 

The  foregoing  case  of  McConnell  v.  Wilcox  was  appealed  to  the  Supreme 
Court  of  the-United  States,  where  the  following  points  were  decided : 

Ejectment  for  a  tract  of  land  in  Cook  county,  Illinois,  being  a  fractional 
section,  embracing  the  military  post  called  Fort  Dearborn,  at  the  time  of  the 
institution  of  the  snit.  in  the  possession  of  the  defendant  as  the  commanding 
officer  of  the  United  States.  The  post  was  established  in  1804,  and  was  occupied 
by  the  troops  of  the  United  States  until  August  16th,  1812,  when  the  troops 
were  massacred,  and  the  fort  taken  by  the  enemy.  It  was  re-occupied  by 
the  United  States  in  1816,  and  continued  to  be  so  held  until  May,  1823,  dur- 
ing which  time  some  factory  houses,  for  the  use  of  the  Indian  Department, 
were  erected  on  it.  It  was  evacuated  by  order  of  the  War  Department  in 
1823,  and  was,  by  order  of  the  Department,  again  occupied  by  troops  in 
1828,  as  one  of  the  military  posts  of  the  United  States;  was  again  evacuated 
in  1831,  the  government  having  authorized  a  person  to  take  and  keep  pos- 
session of  it.  It  was  again  occupied  by  troops  of  the  United  States  in 
1832,  and  continued  so  to  be  at  the  commencement  of  this  suit,  being  gener- 
ally known  at  Chicago  to  be  occupied  as  a  military  post  of  the  United  States. 
The  buildings  about  the  garrison  were  not  sold  in  1831,  when  it  was  evacu- 
ated; although  a  great  part  of  the  movable  property  in  and  about  it  was 
sold.  In  1817  Beaubien  bought  of  an  army  contractor,  for  one  thousand 
dollars,  a  house  built  on  the  land.  There  was  attached  to  the  house  an  en- 
closure, occupied  as  a  garden  or  field,  of  which  Beaubien  continued  in  pos- 
session until  1836.  In  1823,  the  factory  houses  on  the  land  were  sold  by  or- 
der of  the  Secretary  of  War,  and  were  bought  by  Beaubien  for  five  hundred 
dollars.  Of  these  he  took  possession,  and  continued  to  occupy  them,  and  to 
cultivate  the  land,  without  interruption  by  the  United  States,  until  the  com- 
mencemeiit  of  this  suit.  The  United  States  in  May,  1834,  built  a  lighthouse 
on  the  land,  and  have  kept  twenty  acres  enclosed  and  cultivated.  The  land 
was  surveyed  by  the  government  of  the  United  States  in  1821.  and  in  18'24, 
at  the  instance  of  the  Indian  agent  at  Chicago,  the  Secretary  of  War  re- 
quested the  Commissioner  of  the  General  Land  Office  to  reserve  this  land  for 
the  accommodation  and  protection  of  the  property  of  the  Indian  Agency ; 
who,  in  1821,  informed  the  Secretary  of  War  that  he  had  directed  this  sec- 
tion of  land  to  be  reserved  from  sale  for  military  purposes.  In  May,  1831, 
Beaubien  claimed  this  land,  at  the  Land  Office  in  Palestine,  for  pre-emption. 
This  claim  was  rejected,  and,  by  the  Commissioner  of  the  Land  Office,  he 
was,  in  February,  1832,  informed  that  the  land  was  reserved  for  military 
purposes.  This  information  was  also  given  to  others  who  applied  on  his 
behalf.  In  1834,  he  applied  for  this  land  to  the  Office  in  Danville,  and  his 
application  was  rejected.  In  1835,  Beaubien  applied  for  the  land  to  the 
Land  Office  at  Chicago;  when  his  claim  to  pre-emption  was  allowed;  and  he 
paid  the  purchase  money,  and  procured  the  Register's  certificate.  Beaubien 
sold  and  conveyed  his  interest  to  the  plaintiff  in  the  ejectment.  Held  that 
Beaubien  acquired  no  title  to  the  land  by  his  entry;  and  that  the  right  of 
the  United  State's  to  the  land  was  not  divested  or  affected  by  the  entry  at 
the  Land  Office  at  Chicago,  or  by  any  of  the  previous  acts  of  Beaubien. 

The  decision  of  the  Register  and  Receiver  of  a  Land  OiKce,  in  the  absence 
of  fraud,  would  be  conclusive  as  to  the  facts  that  the  applicant  for  the  land 
was  then  in  possession,  and  of  his  cultivating  the  land  during  the  preceding 
year;  because  these  questions  are  directly  submitted  to  those  officers.  Yet, 
if  they  undertake  to  grant  pre-emptions  to  land,  on  which  the  law  declares 
they  shall  not  be  granted,  then  they  are  acting  upon  a  subject  mat- 
ter clearly  not  within  their  jurisdiction;  *as  much  so  as  if  a  Court,  [*C81J 

895 


:;M  VANDALIA. 


McConnell  v.  Wilcox. 


whose  jurisdiction  was  declared  not  to  extend  beyond  a  given  sum,  should 
attempt  cogni/.ance  of  a  case  beyond  that  sum. 

Appropriation  of  land  by  the  government  is  nothing  more  nor  less  than 
potting  it  apart  for  some  particular  use.  In  the  case  before  the  Court,  there 
has  been  an  appropriation  of  the  land,  not  only  in  fact,  but  in  law,  for  a 
military  post;  for  an  Indian  Agoncy;  and  for  the  erection  of  a  lighthouse. 

By  the  act  of  Congress  of  1830,  all  lands  are  exempted  from  pre-emption 
which  are  reserved  from  sale  by  order  of  the  President  of  the  United  States. 
The  President  speaks  and  acts  through  the  heads  of  the  several  departments, 
in  relation  to  subjects  which  appertain  to  their  respective  duties,  both 
military  posts,  and  Indian  affairs,  including  agencies,  belonging  to  the  War 
Department.  A  reservation  of  lands,  made  at  the  request  of  the  Secretary 
of  War,  for  purposes  in  his  department,  must  be  considered  as  made  by  the 
President  of  the  United  States  within  the  terms  of  the  act  of  Congress. 

Whensoever  a  tract  of  land  shall  have  once  been  legally  appropriated  to 
any  purpose,  from  that  moment  the  land  thus  appropriated,  becomes  severed 
from  the  mass  of  public  lands;  and  no  subsequent  law,  or  proclamation,  or 
sale  would  be  construed  to  embrace  it.  or  to  operate  upon  it;  although  no 
other  reservation  were  made  of  it. 

The  right  of  pre-emption  was  a  bounty  extended  to  settlers  and  occupants 
of  the  public  domain.  This  bounty,  it  can  not  be  supposed,  was  designed 
to  be  extended  to  the  sacrifice  of  public  establishments,  or  of  great  public 
interests. 

Nothing  passes  a  perfect  title  to  public  lands,  with  the  exception  of  a  few 
cases,  but  a  patent.  The  exceptions  are,  where  Congress  grants  lands,  in 
words  of  present  grant.  The  general  rule  applies  as  well  to  pre-emptions  as 
to  other  purchases  of  public  lands. 

The  act  of  the  legislature  of  Illinois,  giving  a  right  to  the  holder  of  a 
Register's  certificate  of  the  entry  of  public  lands,  to  recover  possession  of 
such  lands  in  an  action  of  ejectment,  does  not  apply  to  cases  where  a  para- 
mount title  to  the  lands  is  in  the  hands  of  the  defendant,  or  of  those  he  repre- 
sents. The  exception  in  the  law  of  Illinois  applies  to  cases  in  which  the 
United  States  have  not  parted  with  the  title  to  the  land,  by  granting  a  pat- 
ent for  it. 

A  State  has  a  perfect  right  to  legislate  as  she  may  please  in  regard  to  the 
remedies  to  be  prosecuted  in  her  courts;  and  to  regulate  the  disposition  of 
the  property  of  her  citizens  by  descent,  devise,  or  alienation.  But  Congress 
are  invested,  by  the  Constitution,  with  the  power  of  disposing  of  the  public 
land,  and  making  needful  rules  and  regulations  respecting  it. 

Where  a  patent'has  not  been  issued  for  a  part  of  the  public  lands,  a  State  has 
no  power  to  declare  any  title,  less  than  a  patent  valid  against  a  claim  of  the 
United  States  to  the  land;  or  against  a  title  held  under  a  patent  granted  by 
the  United  States. 

Whenever  the  question  in  any  court,  State  or  Federal,  is,  whether  the  title 
to  property  which  had  belonged  to  the  United  States,  has  passed,  that 
question  must  be  resolved  by  the  Jaws  of  the  United  States.  But  whenever 
the  property  has  passed,  according  to  those  laws,  then  the  propertv,  like 
all  other  in  the  State,  is  subject  to  State  legislation;  so  far  as  that  legislation 
is  consistent  with  the  admission  that  the  title  passed  and  vested  according  to 
the  laws  of  the  United  States. 

Every  tribunal  acting  judicially,  whilst  acting  within  the  sphere  of  its  ju- 
risdiction, where  no  appellate  tribunal  is  created,  its  judgment  is  final;  and 
even  where  there  is  such  an  appellate  power,  the  judgment  is  conclusive 
where  it  only  comes  collaterally  in  question;  so  long  as  it  is  unreversed. 
But  directly  the  reverse  is  true,  in  relation  to  the  judgment  of  any  court, 
acting  beyond  the  pale  of  its  authority.  This  principle  is  concisely  and  ac- 
curately stated  by  this  Court  in  the  case  of  Elliott  and  others  v.  Pe'irsol  and 
others,  reported  in  1  Peters,  349;  13  Peters,  498-9. 

Congress  have  the  sole  power  to  declare  the  dignity  and  effect  of  titles 
196 


JUKE  TEEM,  183T.  381 

McConnell  v.  Wilcox. 

emanating1  from  the  United  States;  and  the  whole  legislation  of  the  govern- 
ment in  reference  to  the  public  lands,  declares  the  patent  to  be  the  superior  and 
conclusive  evidence  of  legal  title.  Until  it  issues  the  fee  is  in  the  govern- 
ment, which  by  the  patent  passes  to  the  grantee,  and  he  is  entitled  to  recov- 
er the  possession  in  ejectment.  Bagnell  et  al.r.  Broderick,  13  Peters,  439. 

When  the  title  to  the  public  land  has  passed  put  of  the  United  States 
by  Conflicting  patents,  there  can  be  no  objection  to  the  practice    [*382] 
adopted  by  the  courts  of  a  State  to  give  effect  to  the  better  right,  in 
any  form  of  remedy  the  legislature  or  courts  of  the  State  may  prescribe.  Ibid. 

No  doubt  is  entertained  of  the  power  of  the  States  to  pass  laws  authoriz- 
ing purchasers  of  lands  from  the  United  States,  to  prosecute  actions  of  eject- 
ment upon  certificates  of  purchase,  against  trespassers  on  the  lands  purchased ; 
but  it  is  denied  that  the  States  have  any  power  to  declare  certificates  of 
purchase  of  equal  dignity  with  a  patent.  Congress  alone  can  give  them  such 
effect.  Ibid. 

397 


DECISIONS 


SUPREME  COURT 


OF  THE 


STATE  OF  ILLINOIS, 


DELIVERED 


DECEMBER  TERM,  1837,  AT  VANDALIA. 


JOHN  WAKNOCK,  appellant,  v.  WILLIAM  RUSSELL, 
appellee. 

Appeal  from  the  Municipal  Court  of  the  City  of  Alton. 
A  security  for  costs,  entitled  "  The  Same  v.  The  Same,"  is  insufficient. 

THE  record  in  this  case  shows  that  a  precipe  was  filed  in 
the  Court  below,  in  an  action  commenced  by  Russell  against 
Warnock,  and  that 

"  Afterwards,  to  wit,  on  the  same  day  and  year  aforesaid, 
and  at  the  place  aforesaid,  the  plaintiff  in  this  cause,  by  Davis 
Ac  D?Wolf,  his  attorneys,  filed  in  the  Clerk's  office  of  said 
Court,  the  following  bond  for  costs,  which  said  bond  is  in  the 
words  and  figures  following,  to  wit : 

"  The  Same  v.  The  Same. 

We  hereby  enter  ourselves-  as  security  for  costs  in  this  en- 
titled cause,  and  acknowledge  ourselves  bound  to  pay  all  costs 
that  may  accrue  either  to  the  opposite  party  or  to  any  of  the 
officers  of  this  Court,  in  pursuance  of  the  laws  of  this  State. 

DAVIS  &  D'WoLF." 

Alton,  Sept.  4th,  1837. 

At  the  October  term,  1837,  of  the  Municipal  Court  of  the 
City  of  Alton,  the  Hon.  Win.  Martin  presiding,  a  motion  was 

H 


DECEMBER  TERM,  1837.  383 

Warnock  v.    Russell. 

made  by  the  defendant  in  the  Court  below,  to  dismiss 
the  cause  because  *no  security  for  costs  was  h'led.     [*384] 
This    motion    was    overruled.     Judgment  was  ren- 
dered for  the  appellee,  from  which  the  appellant  appealed  to 
this  Court. 

U.  F.  LINDEE,  for  the  appellant. 
A.  COWLES,  for  the  appellee. 

SMITH,  Justice  delivered  the  opinion  of  the  Court : 

The  appellant,  who  was  the  defendant  in  the  Court  below, 
by  his  counsel  moved  to  dismiss  this  cause,  because  the  plaint- 
iff, at  and  before  the  institution  of  this  suit,  was  a  non-resident 
of  this  State,  and  did  not,  before  or  at  the  commencement  of 
the  suit,  file  such  a  bond  for  costs  as  is  required  by  the  stat- 
ute. From  the  facts  disclosed  by  the  bill  of  exceptions,  it 
satisfactorily  appears  that  the  plaintiff  was  a  non-resident ; 
and  the  only  question  to  be  decided  is,  whether  the  bond  filed 
as  security  for  costs,  is  sufficient. 

The  objection  to  the  bond  is,  that  it  does  not  appear  in  what 
cause  the  paper  purporting  to  be  a  bond,  is  given,  nor  who  the 
parties  to  the  action  are.  The  entitling  the  cause,  "  The 
Same  v.  The  Same"  being  entirely  isolated  and  disconnected 
with  the  names  of  any  parties  to  any  other  cause,  none  such 
appearing,  can  not  admit  of  any  interpretation  to  aid  the  de- 
fect by  a  reference  to  another  cause  between  the  parties  to  this 
action. 

The  Municipal  Court  should  have  dismissed  the  cause  ;  and 
not  having  done  so,  the  judgment  of  the  Municipal  Court  is 
reversed,  with  costs  of  this  Court  and  the  Court  below. 

Judgment  reversed. 


JOHN  B.  MOFFETT,  appellant,  v.  JOHN  CLEMENTS, 
appellee. 

Appeal  from  Macon. 

PT-KADING — AVERMENTS— PROOF.— An  averment  in  a  bill  in  chancery, 
that  the  payment  of  a  note  was  made  on  the  day  the  same  became  due,  is 
not  sustained  by  proving  that  the  money  was  paid,  or  tendered,  at  a  subse  • 
quent  and  remote  day. 

CITED:  88  111.  418;  97  111.  287;  9  Bradw.  147. 


3S4  VANDALIA. 


Moffett  v.  Clements. 


SAME— CHANCERY.— The  rule  at  law,  that  the  evidence  must  substantial- 
ly support  the  plaintiff's  declaration,  is  applicable  to  bills  in  chancery." 

THIS  cause  was  heard  in  the  Court  below,  at  the  September 
terra,  183(5,  bafore  the  Hon.  Stephen  T.  Logan. 

A.  WILLIAMS,  WM.  THOMAS,  and  WM.  BBOWN,  for  the  ap- 
pellant. 

JOSIAH  FISK,  for  the  appellee. 

[*385]       *LOCKWOOD,  Justice,  delivered   the   opinion  of  the 

Court : 

This  was  a  bill  in  chancery  filed  in  the  Macon  Circuit  Court 
by  Moffett  against  Clements  to  obtain  the  specific  performance  of 
aii  agreement  in  writing,  dated  29th  of  April,  1834,  to  convey 
a  tract  of  land.  The  bill  alleges  that  Clements  was  to  convey 
the  land  upon  the  complainant's  paying  to  the  defendant  a 
promissory  note  for  $100,  dated  April  9th,  1834,  when  said 
note  became  due,  which  was  sixty  days  after  date.  The  bill 
further  alleges  that  the  complainant  fully  paid  and  discharged 
the  note  according  to  its  tenor  and  effect.  The  defendant  in 
his  answer  states  that  no  portion  of  the  purchase  money  has 
ever  been  paid  or  tendered  to  him.  The  depositions  show  that 
in  the  year  1832,  the  complainant  leased  to  the  defendant  a 
stock  farm  with  stock  on  it  for  eight  years ;  that  the  defend- 
ant was  also  to  furnish  some  stock  and  manage  the  whole  for 
their  joint  benefit ;  that  each  should  share  alike  in  the  benefit 
of  all  sales  of  stock.  That  on  the  29th  of  March,  1836,  the 
defendant  furnished  an  inventory  of  sales  of  stock  amounting 
to  about  $1,200.  That  complainant  offered  to  defendant  on  or 
about  the  29th  of  March,  1836,  to  credit  the  defendant  on  the 
account  the  amount  of  the  note  executed  for  the  purchase  of 
the  tract  of  land  above  mentioned  if  defendant  would  convey 
the  land,  which  offer  the  defendant  refused  to  accept.  That  on 
the  22d  of  April,  1836,  the  defendant  paid  one  Emerson,  the 
attorney  for  complainant,  the  sum  of  $372.24,  the  balance  due 
the  complainant  on  the  sales  of  stock  mentioned  in  the  inven. 

*Pleading — Proofs  and  allegations  of  the  bill  must  correspond. 

If  the  complainant  fails  to  prove  the  case  made  by  his  bill,  he  can  not 
recover,  though  the  facts  proved  would  have  entitled  him  to  recover,  had 
the  bill  been  properly  framed.  White  v.  Morrison,  11  111.  361;  Rowan  P. 
Bowles,  21  111.  17;  Wise  ».  Twiss,  54  111.  301;  Doyle  v.  Teas,  4  Scam.  202; 
McKay  r.  Bissett,  5  Gilm.  499;  Taylor  v.  Merrill,  55.  111.  52;  Tiernan  r. 
Granger,  65  111.  351 ;  Tuck  v.  Downing,  76  111.  71 ;  Morrisor  v.  Tilman,  81  111. 
607;  Allen  r.  Sawyer,  88  111.  415;  Kellogg  v.  Moore,  97  111.  282;  Slocum  v. 
Slocum,  9  Bradw.  142,  147,  and  authorities  cited;  Boon  v.  Childs,  35  U.  S. 
(10  Pet.),  177. 

400 


DECEMBEK  TEEM,  1837.  385 

Moffett  v.  Clements. 

tory,  and  that  at  the  time  of  said  payment  said  Emerson  of- 
fered to  said  defendant  that  he  might  retain  the  money  due  on 
the  note  provided  the  defendant  would  give  up  the  note,  which 
offer  the  defendant  refused  to  accept,  and  paid  the  whole  money 
to  Emerson.  The  depositions  also  show  that  the  defendant 
once  called  on  complainant  to  pay  the  note  and  once  sent  to 
him  for  the  money.  The  case  was  decided  in  the  Circuit 
Court  on  the  bill,  answer,  replication  and  depositions.  The 
Court  below  was  of  opinion  that  the  complainant  had  failed 
to  pay  the  defendant  the  sum  of  $100,  the  purchase  money  for 
the  land  as  specified  in  the  written  agreement,  according  to  the 
tenor  and  effect  thereof,  and  therefore  decreed  that  the  bill  be 
dismissed.  To  reverse  this  decree  an  appeal  has  been  taken  to 
this  Court.  The  only  error  assigned  is  the  general  error  that 
the  decree  ought  to  have  been  in  favor  of  the  complainant, 
and  not  in  favor  of  the  defendant.  It  was  urged  on  the  argument 
on  behalf  of  the  complainant,  that  time  in  general  is  not  of 
the  essence  of  'a  contract  to  convey  land,  so  as  to  prevent  a 
specific  execution  of  the  contract.  Without,  however,  decid- 
ing how  far  the  time  of  payment  in  this  case  was  of  the  es- 
sence of  the  contract,  it  is  sufficient  for  this  Court  to  say,  that 
the  bill  stating  that  payment  was  made  on  the  day  the 
money  became  due,  is  *not  sustained  by  proving  that  [*386] 
the  money  was  paid  or  offered  to  be  paid  at  a  subse- 
quent and  remote  day. 

In  this  case,  however,  the  answer  wholly  denies  the  payment 
of  the  note,  and  the  depositions  only  show  an  offer  to  credit 
the  defendant  for  the  money  nearly  two  years  after  the  note 
became  due.  This  offer  does  not  sustain  the  allegations  in  the 
bill.  The  rule  at  law,  that  the  evidence  must  substantially  sup- 
port the  plaintiff's  declaration,  is  applicable  to  bills  in  chan- 
cery. As  the  proof  wholly  fails  to  show  any  payment  of  the 
note,  the  decision  of  the  Circuit  Court  was  correct.  Whether 
the  complainant  may  not  present  such  a  case  by  a  proper  bill, 
as  to  authorize  a  decree  for  specific  performance,  is  a  question 
this  Court  is  not  called  on  to  decide. 

The  decree  is  affirmed  with  costs. 

Judgment  affirmed. 

VOL.  1-26  *>! 


3S6  VANDALIA. 


Beaubien  v.  Barbour. 


MARK  BEAUBIEN,   appellant,  v.   JOHN  M.  BARBOUR, 

appellee. 

Appeal  from  Cook. 

OBJECTION — Enuon. — Where  a  writ  is  tested  in  the  name  of  a  person 
who  was  not,  at  the  date  of  the  test,  judge  of  the  Court,  the  objection  can 
be  taken  advantage  of  only  by  motion  in  the  Court  from  which  the  process 
issued.  The  mistake  can  not  be  assigned  for  error  in  this  Court.0 

The  act  of  July,  1837,  provides  for  the  cases  of  irregular  tests  of  writs, 
and  legalizes  them. 

THIS  was  an  action  commenced  in  the  Cook  Circuit  Court  by 
John  M.  Barbour  against  Mark  Beaubien.  The  summons  was 
dated  on  the  23d  day  of  March,  1837,  (1)  and  tested  in 
the  name  of  Thomas  Ford  as  judge  of  said  Court.  The  sum- 
mons was  duly  executed  and  returned.  At  the  May  term  of 
said  Court,  1837,  Beaubien  failing  to  appear,  judgment  was 
rendered  against  him  by  default  for  $764.15  damages  and  costs 
of  suit.  From  this  judgment  Beaubien  appealed  to  this  Court. 

GILES  SPRING,  for  the  appellant. 

J.  YOUNG  SCAMMON,  for  the  appellee,  cited  2  Sellon's  Prac- 
tice 363,  382,  384 ;  Story's  Pleadings,  title  Error;  R  L.  64, 
§  3 ;  (Gale's  Stat.  49.)  Breese,  133,  and  cases  there  cited ;  1 
Bac.  Abr.  212  ;  1  Cowen,  199,  203  ;  4  Cowen,  163  ;  9  Wendell, 
486  ;  Stephen  on  Plead.  106. 

[*387]        *SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

In  this  case  it  is  assigned  for  error  that  the  process 

was  not  tested  in  the  name   of  a   Circuit   judge   of    this 

CITED  :  When  question  of  irregularity  can  not  be  raised.     16  111.  356. 

^Practice — Appeal  and  error — Objections  not  raised  below. 

As  a  general  rule,  objections  not  raised  below,  can  not  be  raised  on  appeal 
or  error.  In  addition  to  the  above  case  of  Beaubien  v,  Barbour,  see  Har- 
mon v.  Thornton,  2  Scam.  .351 ;  Miere  v.  Brush,  3  Scam.  21 ;  Smith  v. 
Moore,  3  Scam.  463;  Trustees  t>.  Holland,  19  111.271;  Gillipsie  v.  Smith,  29 
III.  473;  Sergeant  r.  Kellogg,  5  Gilm.  273;  Swift  v.  Whitney,  20  111.  144; 
Buntuin  v.  Bailey,  27  111.  4iO:  Chumasero  v.  Gilbert,  26  111.  39;  Jackson  v. 
Warren,  32  111.  331;  Allen  v.  Payne,  45111.  339:  Howell  r.  Edmonds,  47  111. 
79;  Haynes  v.  Lucas,  50  111.  436;  Tug  Boat  v.  Waldron,  62  111.  221. 

The  admission  of  testimony  not  objected  to,  can  not  be  assigned  for  error. 
Sawyer  r.  Alton.  3  Scam.  127;  Toledo,  etc.,Ry.  Co.r.  Miller,  55  111.  448. 

1  On  the  4th  of  February,  1837,  the  county  of  Cook  was,  by  an  act  of  the 
General  Assembly,  included  in  a  new  circuit,  and,  at  that  date,  Judge  Ford 
ceased  to  be  a  judge  of  the  Circuit  Court. 

402 


DECEMBEK  TEEH,  1837.  387 

Lyon  v.  Barney. 

State,  nor  of  any  clerk  of  any  Circuit  Court.  On  inspection 
of  the  process,  it  appears  to  be  tested  in  the  name  of  Thomas 
Ford,  judge  of  the  Circuit  Court  of  Cook  county.  This 
Court  must  presume  this  test  to  be  true,  until  the  contrary 
appears.  If  the  individual  was  not  judge  of  that  Court  at 
the  time  of  the  emanation  of  the  writ,  this  would  be  a  fact 
to  have  been  shown'  by  evidence.  The  misconception  of 
counsel,  in  assigning  here  an  error  in  fact  for  a  supposed 
error  in  law,  is  not  only  irregular,  but  unavailing.  If  there 
had  been  an  erroneous  test,  the  defendant  might,  by  motion 
in  the  Court  below,  have  availed  himself  of  the  objection;  but 
the  record,  we  apprehend,  can  not  now  be  contradicted.  Be- 
sides the  acts  of  the  last  session  of  the  legislature  (Acts  of 
July,  1837,  51 ;  Gale's  Stat.  194)  have  provided  for  the  cases 
of  the  irregular  tests  of  writs  of  the  kind  here  supposed,  and 
legalized  them. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


MERRITT  LYON,  plaintiff  in  error,  v.  NATHAN  BARNEY, 
defendant  in  error. 

Error  to  McLean. 

PLEADING — DEFAULT. — Where  the  record  shows  that  a  plea  -was  filed 
and  a  judgment  by  default  rendered  on  the  same  day,  the  judgment  will  be 
reversed.  The  Court  will  not  presume  that  the  plea  was  filed  after  the 
judgment  was  rendered." 

JUDGMENT. — In  an  action  of  assumpsit,  it  is  erroneous  to  enter  up  a  judg- 
ment for  debt  and  damages. 

LEVI  DAVIS  and  FERRIS  FORMAN,  for  the  plaintiff  in  error, 
cited  Breese,  5,  43. 

T.  FORD,  for  the  defendant  in  error : 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  assumpsit  on  a  promi^ory  note.     The 
declaration  is  in  the  usual   form ;  plea  non-assumpsit._    On  the 
same  day  that  the  plea  was  filed,  the  plaintiff  took  a  judgment 

CITED:  Judgment  erroneous  without  trying  issues  tendered.  4 Scam.  55: 
83  111.  446.  See  also,  Manlove  v.  Gallipot,  post  p.  390;  Covell  v.  Marks. 

»  Qucere  '  Should  not  all  presumptions  be  in  favor  of  the  judgment?  Rich 
v.  Hathaway,  18  111.  548;  Martin  v.  Barnhart,  39  111.  9;  Miner  v.  Phillips, 
42  111.  123. 

408 


:;<7  VANDALIA. 


Peyton  et  al.  v .  Tappan. 


by  default,  and  entered  up  a  judgment  for  debt  and  damages. 
It  is  now  assigned  for  error  that  this  judgment  is  erroneous — 
the  taking  judgment  by  default,  after  plea  pleaded ;  and  also, 
that  the  form  of  the  judgment,  being  in  debt,  is  likewise 

erroneous.  It  is  contended  by  the  defendant  in  error, 
[*3SS]  that  the  ^judgment  being  on  the  same  day  that  the 

plea  was  filed,  this  Court  will  presume  that  the  judg- 
ment was  entered  antecedently  to  the  filing  of  the  plea.  We 
can  not  accede  to  this  presumption.  The  record,  which  is  our 
only  means  of  ascertaining  the  facts  in  the  cause,  shows  the 
plea  to  have  been  entered  previous  to  the  rendition  of  the 
judgment.  In  order  of  time  it  precedes  the  judgment  on  the 
record,  and  no  presumption  can  be  raised  to  contradict  the 
record.  The  form  of  the  judgment  is  also  erroneous ;  it  should 
have  been  for  the  sum  due  as  damages,  and  not  for  debt  and 
damages. 

The  judgment  of  the  Circuit  Court  is  reversed,  with  costs, 
the  cause  remanded  with  instructions  to  proceed  in  the  cause. 

Judgment  reversed. 


LUCIEN  PEYTON  and  ALFRED  ALLEN,  appellants,  v. 
ALEXANDER  TAPPAN,  appellee. 

Appeal  from  the  Municipal  Court  of  the  City  of  Chicago. 

PLEADING — VAKIANCE. — Where  the  declaration  averred  that  the  defend- 
ants made  their  promissory  note  to  the  plaintiff,  Alexander  Tappan,  and 
the  note  produced  in  evidence  was  made  payable  to  A.  H.  Tappan,  and  the 
plaintiff  proved,  by  parol,  that  Alexander  and  A.  H.  was  one  and  the 
same  person,  and  the  holder  of  the  note:  Held  that  the  proof  sustained 
the  declaration. 

THIS  cause  was  tried  at  the  July  term,  1837,  of  the  Munic- 
ipal Court  of  the  City  of  Chicago,  before  the  Hon.  Thomas 
lord.  Judgment  was  rendered  for  the  appellee  for  $212.44 
and  costs. 

JAMES  GBANT,  for  the  appellants. 

J.  YOUNG  SCAMMON,  for  the  appellee,  cited  1  Stark.  Ev.  415, 
420,  431 ;  3  Stark.  Ev.  1545,  note  1, 1582  and  note  1,  1580  and 
note  1;  13  Johns.  486;  1  Blackf.  59. 

CITED:  Pleading.    3  Scam.  372. 
DM 


DECEMBER  TERM,  1837.  388 

Longley  et  al.  v.  Norvall. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  assumpsit,  commenced  in  the  Munic- 
ipal Court  of  the  City  of  Chicago,  by  Tappan  against  Pey- 
ton and  Allen.  The  plaintiff  declared  on  two  promissory 
notes.  The  declaration  alleges  that  the  defendants  made  their 
notes,  and  thereby  promised  to  pay  the  plaintiff  the  sums  of 
money  therein  named.  The  declaration  also  contains  the  com- 
mon money  counts.  The  defendants  pleaded  non-assumpsit. 
The  cause  was  tried  by  the  Court  without  a  jury.  On  the 
trial  of  the  cause,  the  defendants  demurred  to  the  evidence  of 
the  plaintiff,  to  which  the  plaintiff  joined.  The  demurrer 
states  that  the  plaintiff  read  the  notes  on  the  trial,  by  which  it 
appeared  that  the  notes  were  payable  to  A.  H.  Tap- 
pan.  The  plaintiff  also  proved  that  *Alexander  Tap-  [*389] 
pan,  the  plaintiff,  and  A.  Ii.  Tappan  were  the  same 
person,  and  the  holder  of  the  notes.  On  this  evidence,  the 
Court  below  gave  judgment  for  the  plaintiff. 

It  is  assigned  for  error  that  the  Court  overruled  the  de- 
fendant's demurrer  to  the  plaintiffs  testimony.  It  was  con- 
tended on  the  argument,  that  in  order  to  receive  the  note  and 
oral  testimony  as  evidence,  it  ought  to  have  been  alleged  in 
the  declaration,  that  the  note  was  made  to  the  plaintiff  by  the 
name  of  A.  H.  Tappan.  This  mode  of  declaring  is  unneces- 
sary. The  averment  in  the  declaration  that  the  note  was 
made  to  the  plaintiff,  is  proved  by  producing  a  note  payable 
to  A.  II.  Tappan  and  proving  that  A.  H.  Tappan  and  Alexan- 
der Tappan  are  the  same  person.  The  evidence  was  also 
admissible  under  the  money  counts.  The  judgmentis  the  re- 
fore  affirmed  with  costs. 

Judgment  affirmed. 


EDWIN  LONGLEY  and  WILLIAM   LONGLEY,  appellants, 
v.  LIENDAMAN  NoRVALL,  appellee. 

Appeal  from  Schwjler. 

COVENANT — PLEA— DEFENSE. — The  plea  of  non  estfactum  may  be  inter- 

Sosed  in  an  action  of  covenant,  without  being  verified  by  affidavit ;  and  un- 
er  it  the  defendant  may  avail   himself  of  any  legal  defense  that  he  could 
have  done  at  common  law,  except  merely  denying  or  disproving  the  execu- 
tion of  the  instrument  declared  on. 

In  an  action  of  covenant  there  is  no  plea  which  can  strictly  be  termed 
the  general  issue  ;  but  the  general  issue  in  debt  is  correctly  used  to  answer, 
under  the  statute,  the  same  end  it  does  in  debt. 

CITED:  Plea  of  non  est  factum.    2  Scain.  57;  2  Gil.  717;    43  111.  143. 

405 


YANDALIA. 


Longley  et  al.  v.  Norvall. 


S.  T.  LOGAN  and  E.  D.  BAKER,  for  the  appellants. 
G.  W.  P.  MAXWELL,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 

Norvall  commenced  an  action  of  covenant  in  the  Schuyler 
Circuit  Court,  against  William  and  Edwin  Longley,  on  a 
sealed  note.  The  defendants  pleaded  nan  est  fact-urn,  without 
accompanying  the  plea  with  an  affidavit  of  its  truth.  To  this 
plea  the  plaintiff  demurred,  and  the  Court  sustained  the  de- 
murrer. 

By  the  12th  section  of  the  "  Act  concerning  Practice  in 
Courts  of  Law"  (R.  L.  480  ;  Gale's  Stat.  531-2)  it  is  enacted, 
"  That  the  defendant  may  plead  as  many  matters  of  fact  in 
several  pleas  as  he  may  deem  necessary  for  his  defense,  or 
may  plead  the  general  issue,  and  give  notice  under  the  samp, 
of  the  special  matters  intended  to  be  relied  on  for  his  defense, 
on  the  trial,  under  which  notice,  if  adjudged  by  the 
[*390]  Court  to  be  sufficiently  clear  and  explicit,  the  *def end- 
ant  shall  be  permitted  to  give  evidence  of  the  facts 
therein  stated,  as  if  the  same  had  been  specially  pleaded  and 
issue  taken  thereon;  but  no  persons  shall  be  permitted  to  deny 
on  trial  the  execution  of  any  instrument  in  writing,  whether 
sealed  or  not,  upon  which  any  action  may  have  been  brought, 
unless  the  person  so  denying  the  same,  shall,  if  defendant, 
verify  his  plea  by  affidavit." 

It  was  contended  on  the  argument,  that  the  plea  filed  in 
this  case  was  bad,  because  it  was  not  verified  by  affidavit.  This 
is  not  the  true  construction  of  the  act.  In  an  action  of  cove- 
nant, there  is  strictly  no  plea  which  can  be  termed  a  general 
issue;  but  the  plea  of  non  est  factum,  the  general  issue  in  debt 
on  specialty,  is  correctly  used,  to  answer  in  this  action  the 
same  end  it  does  in  debt.  At  common  law,  when  such  a  plea 
was  interposed  and  issue  joined  thereon,  the  plaintiff  was  under 
the  necessity  of  proving  the  execution  of  the  sealed  instru- 
ment declared  on  by  the  subscribing  witness,  if  there  was  one, 
and  the  handwriting  of  the  defendant,  if  there  was  no  sub- 
scribing witness.  This  rule  of  evidence  was  considered  by 
the  legislature  as  imposing  an  unreasonable  burthen  upon  the 
plaintiff,  and  hence  the  passage  of  this  act  to  dispense  with 
proof  of  the  execution  of  written  instruments,  unless  the  de- 
fendant denied  their  execution  on  oath.  The  legislature  did 
not  intend  to  change  the  rules  of  pleading,  as  respects  this 
plea,  but  to  dispense  with  a  rule  of  evidence  that  was  oppress- 
ive. If  a  party  when  he  files  his  plea,  does  not  verify  it  by 
affidavit,  he  mav,  notwithstanding  this  omission,  rely  on  any 

406 


DECEMBER  TERM,  1837.  390 

Manlove  et  al.  v.  Bruner. 

legal  defense  under  his  plea,  that  he  could  have  done  at  com- 
mon law,  except  merely  denying  or  disproving  the  execution 
of  the  writing  declared  on.  The  Circuit  Court  consequently 
erred  in  sustaining  the  plaintiff's  demurrer. 

The  judgment  below  is  reversed  with  costs,  and  the  cause 
remanded  with  directions  to  the  Court  below  to  overrule  the 
demurrer. 

Judgment  reversed. 


JONATHAN  D.  MANLOVE  and  MOSES  MANLOVE,  appel- 
lants, v.  JOHN  GALLIPOT,  ex  dem.  JOHN  BRUNER, 
appellee. 

Appeal  from  ScTiuyler. 

PLEADING — PRACTICE— DEFAULT. — After  a  plea  of  not  guilty  has  been 
filed  putting  a  cause  at  issue,  the  Court  can  not  on  calling  of  the  defend- 
ants, render  a  judgment  by  default  ;  a  jury  should  be  impaneled,  and  a  trial 
had  in  the  same  manner  as  if  the  defendants  had  answered  when  called. 

*M.  McCoNNELL,  for  the  appellee.  [*391] 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  ejectment  brought  in  the  Schuyler 
Circuit  Court.  The  defendants  filed  their  plea  of  not  guilty, 
on  which  the  plaintiff  joined  issue.  Subsequently  to  the  join- 
ing issue  on  the  plea  of  not  guilty,  the  plaintiff  had  the  de- 
fendants called,  and  upon  their  not  appearing,  had  their  default 
entered,  and  judgment  that  the  plaintiff  recover  his  term  and 
costs  of  suit.  This  was  clearly  erroneous.  After  issue  is 
joined,  the  plaintiff,  to  obtain  judgment,  must  proceed  and 
try  his  cause  by  a  jury,  in  the  same  manner  as  if  the  defend- 
ants had  answered  to  their  names  when  called. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  remanded  with  directions  to  the  Court  below 
to  set  aside  the  judgment  by  default. 

Judgment  reversed. 

CITED  :  Judgment  by  default — Plea  on  file.  83  111.  446.  Erroneous, 
•without  trying  issues  tendered.  4  Scam.  55.  See  Lyon  v.  Barney,  ante  p. 
387,  and  the  following  case,  Covell  v.  Marks. 

407 


391  VANDALIA. 


Covell  et  al.  t>.  Marks.    Highland  v.  The  People. 


MERRIT  L.  COVELL,  ORTOGRUL  COVELL,  'and  JESSE 
W.  FELL,  plaintiffs  in  error,  v.  JACOB  MARKS,  de- 
fendant in  error. 

Error  to  McLean. 

PLEADING — PRACTICE — DEFAULT. — It  is  erroneous  to  take  judgment  by 
default  where  a  plea  of  non-assumpsit  is  interposed.  A  jury  should  be  im- 
paneled to  try  the  issue,  whether  the  defendant  be  present  or  absent. 

L.  DAVIS  and  F.  FOKMAN,  for  the  plaintiffs  in  error. 
T.  FORD,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
It  appears  by  the  record  in  this  case,  that  on  the  26th  day 
of  September,  1837,  the  defendants  filed  their  plea  of  non-as- 
sumpsit ;  and  on  the  27th  of  the  same  month,  the  Court  below 
gave  judgment  by  default  against  them.     This  was  erroneous ; 
the  Circuit  Court  should  have  impaneled  a  jury  and  tried 
the  cause,  whether  the  defendants  answered  when  called  or  not. 
The  judgment   of   the  Court  below  is  reversed   with  costs, 
and  the  cause  remanded,  with  directions  to  the  Circuit  Court 
to  set  aside  the  default. 

Judgment  reversed. 

CITED:  Default,  when  erroneous.     17  111.  399;  83  111.  446. 
See  also,  the  preceding  cases  of  Manlove  v .  Gallipot ;  Lyon  v.  Barney, 
ante  p.  387. 


[*392]  *GEORGE  HIGHLAND,  plaintiff  in  error,  v.  THE 
PEOPLE  OF  THE  STATE  OF  ILLINOIS,  defendants 
in  error. 

Error  to  Cook. 

LARCENY — TRIAL — PRACTICE. — On  a  trial  for  larceny,  the  jury  should  find 
the  value  of  the  property  stolen,  otherwise  the  Court  can  not  pass  sentence 
upon  the  prisoner. 

VERDICT. — Where  the  verdict  of  the  jury  in  a  trial  for  larceny  was, 
"  We,  the  jury,  find  the  defendant  guilty,  and  sentence  him  to  the  peniten- 
tiary for  the  term  of  three  years,"  and  a  motion  was  made  in  arrest  of  judg- 
ment, because  the  value  of  the  property  stolen  was  not  stated  in  the  verdict: 

CITED:  Insufficiency  of  verdict.  37  111.  463;  3  Gilm.  54.  Value  of 
stolen  property.  39  111.  241.  Jury  should  find  it.  16  111.  507;  104  111.  568. ' 

408 


DECEMBER  TERM,  1837.  392 

Highlands.  The  People. 

Held  that  the  defect  was  fatal,  and  that  the  judgment  should  have  been  ar- 
rested. 
IMPLICATION. — Nothing  can  be  taken  by  implication  in  a  criminal  case. 

THIS  was  an  indictment  against  the  plaintiff  in  error,  found 
by  the  Grand  Jury  of  Cook  county,  at  the  May  term,  1837, 
of  the  Cook  Circuit  Court,  for  larceny.  The  indictment 
contained  two  counts.  In  the  first,  the  defendant  below  was 
charged  with  feloniously  stealing  among  other  things,  "  Twenty 
dollars  in  bank  bills  and  silver  coin,  of  the  value  of  twenty  dol- 
lars," the  property  of,  etc.  The  second  count  was  not  preferred 
and  carried  on  "  In  the  name  and  by  the  authority  of  the  Peo- 
ple of  the  State  of  Illinois." 

The  defendant  below,  before  he  was  arraigned,  by  his  coun- 
sel, moved  the  Court  to  quash  the  said  indictment  for  the  fol- 
lowing reasons: 

I.  Because  the  allegation  in  the  indictment  for  taking  bank 
notes,  is  uncertain  in  this,  to  wit : 

1.  Because  it  is  not  alleged  whether  they  were  bank  bills 
issued  by  any  corporation,  or  what  corporation,  or  whether 
they  were  notes  of  individuals,  payable  at  the  bank. 

2.  Because  there  is  no  description  whatever  of  any  note,  bill 
or  other  instrument  in  writing,  etc. 

II.  The  prosecution  preferred  in  the  second  count  of  the 
indictment  was  not  preferred  and  carried  on  "  In  the  na}K3  and 
by  the  authority  of  the  People  of  the  /State  of  Illinois." 

Which  motion  to  quash  was  overruled  by  the  Court.  The 
defendant  below  then  pleaded  not  guilty.  A  jury  was  called 
and  sworn,  and  after  hearing  the  evidence,  returned  the  fol- 
lowing verdict:  "We  the  jury  find  the  defendant  guilty,  and 
sentence  him  to  the  penitentiary  for  the  term  of  three  years." 

Whereupon  the  defendant  below,  by  his  counsel,  moved  the 
Court  to  arrest  the  judgment  upon  the  said  verdict  for  the  fol- 
lowing causes: 

I.  The  indictment  is  insufficient,  for  the  same  reasons  stated 
on  the  motion  to  quash. 

II.  The  verdict  is  insufficient  for  the  foil  owing  causes : 

*1.  The  jury  did  not  find,  by  their  verdict,  that     [*393] 
the   defendant   was  guilty   in  manner  and   form  as 
charged  in  the  indictment. 

2. "The  jury  did  not  find,  by  their  verdict,  the  amount  of 
property  stolen  by  the  defendant. 

3.  The  jury  did  not  find,  by  their  verdict,  that  the  value  of 
the  goods  stolen  amounted  to  five  dollars  or  more. 

4.  The  verdict  is  in  other  respects  insufficient,  etc. 

This  motion  was  overruled  by  the  Court,  and  sentence  was 
accordingly  pronounced  and  carried  into  execution. 

409 


393  YANDALIA. 


Highland  v.  The  People. 


The  cause  was  tried  at  the  said  May  term,  before  the  Hon. 
John  Pearson. 

J.  D.  CATON  and  NORMAN  B.  JUDD,  for  the  plaintiff  in  error, 
cited  State  Const.  Art.  4,  §  7 ;  Criin.  Code  §  63-65.  (E.  L. 
182-3 ;  Gale's  Stat.  208.) 

USHEK  F.  LINDEB,  Attorney  General,  for  the  defendants  in 
error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

The  prisoner  was  indicted,  tried  and  convicted  of  larceny, 
at  the  last  May  term  of  the  Cook  Circuit  Court.  The  indict- 
ment contains  two  counts,  and  charges  the  plaintiff  in  error 
with  stealing  various  articles  of  personal  property,  of  different 
amounts  in  value,  from  twelve  and  a  half  cents  to  twenty -five 
dollars.  The  jury  who  tried  the  prisoner  returned  a  general 
verdict  in  these  words :  "  We,  the  jury,  find  the  defendant 
guilty,  and  sentence  him  to  the  penitentiary  for  the  term  of 
three  years."  On  this  verdict  the  Circuit  Court  rendered 
judgment,  and  sentenced  the  prisoner  to  three  years  impris- 
onment in  the  penitentiary  at  hard  labor,  except  that  for  one 
month  of  this  time  he  was  to  suffer  solitary  confinement. 
During  the  progress  of  the  cause,  the  counsel  for  the  prisoner 
moved  to  quash  the  indictment,  on  several  grounds,  which, 
however,  are  not  now  considered  important  to  be  reviewed  in 
the  decision  of  this  case,  because  the  motion  to  arrest  the 
judgment  ought  to  have  prevailed  for  the  reasons  specified  in 
the  third  ground  assigned  in  the  Court  below,  and  now  here 
re-assigned  for  error. 

That  cause  is  the  insufficiency  of  the  verdict  in  not  finding 
the  value  of  the  property  charged  to  have  been  stolen. 

By  the  63d  section  of  the  "  Act  relative  to  Criminal  Juris- 
prudence," (K.  L.  182  ;  Gale's  Stat.  208),  it  is  declared  that  no 
person  convicted  of  larceny,  shall  be  condemned  to  the  peni- 
tentiary, unless  the  money  or  the  value  of  the  thing  stolen,  shall 
amount  to  five  dollars ;"  and  by  the  158th  section  (K.  L.  208; 
Gale's  Stat.  229),  of  the  same  act,  it  is  declared  that 
"  The  jury  who  try  the  case  shall  designate  in  their  ver- 
dict, the  term  of  time  the  offender  shall  be  confined ;  and  the 
Court  shall  pronounce  the  sentence,  designating  the 
[*394]  extent  of  solitary  Confinement,  and  of  hard  labor  in 
the  penitentiary."  From  the  provision  of  the  63d 
section,  it  became  the  duty  of  the  jury  to  designate  in  their 
verdict  the  value  of  the  property  stolen  by  the  prisoner,  as 
Otherwise,  without  that  finding,  it  was  impossible  for  the 

410 


DECEMBEK  TEEM,  1837.  394 

Highland  v.  The  People. 

Court  to  legally  determine  whether  the  prisoner  was  a  subject 
of  penitentiary  punishment.  The  value  of  the  articles  charged 
to  have  been  stolen,  may  or  may  not  have  been  the  value  alleged, 
and  the  proof  may  not  have  shown  that  all  were  stolen ;  and  as 
some  were  of  small  and  others  of  greater  value,  the  jury 
might  have  been  satisfied  of  the  guilt  of  the  prisoner,  on  the 
proof  of  any  one  having  been  stolen.  The  guilt  might  have 
been  confined  to  one  of  less  value  than  five  dollars,  and  if  so, 
the  sentence  could  not  stand. 

The  jury  in  appointing  the  time,  should  also  show  enough 
on  the  face  of  their  verdict,  that  they  acted  in  giving  their 
sentence,  within  the  provisions  of  the  63d  section  of  the  act. 
This  ought  to  appear  affirmatively,  and  not  require  inference 
or  implication  to  sustain  it.  Nothing  can  be  taken  by  impli- 
cation in  a  criminal  case.  The  clear  and  absolute  ascertain- 
ment of  facts  should  alone  warrant  the  character  of  the  pun- 
ishment pronounced  by  a  court  of  justice.  No  possible  doubt 
should  be  entertained  whether  the  verdict  of  the  jury  war- 
ranted the  judgment  to  be  given.  Where  inference  and  in- 
tendment  are  to  be  resorted  to,  to  supply  the  defect  in  the 
verdict  as  to  the  value,  as  in  the  present  case,  doubts  can  not 
but  arise  as  to  the  correctness  of  such  inference  and  intend- 
nient  of  the  law. 

It  is  one  of  the  boasted  principles  by  which  the  character 
of  our  criminal  jurisprudence  is  said  to  be  marked,  that  in  all 
cases  of  doubt,  the  criminal  shall  be  entitled  to  the  benefit 
thereof  ;  and  it  is  not  more  wise  than  it  is  humane.  "We  can 
not  in  this  decision  have  the  advantage  of  precedents,  because 
of  the  peculiar  feature  of  our  code  in  criminal  cases,  giving  to 
the  jury  the  power  of  awarding  the  time  of  punishment ;  but 
the  practice  that  prevailed  in  England  and  in  some  of  the 
United  States,  while  the  distinction  existed  between  grand  and 
petit  larceny,  the  punishment  of  which  differed  essentially,  is 
considered  analogous.  The  jury  in  their  finding  always  desig- 
nated whether  they  found  the  prisoner  guilty  of  grand  or 
petit  larceny  ;  and  this  depended  on  the  value  of  the  articles 
stolen.  For  the  reasons  assigned,  we  are  of  opinion  that 
it  was  an  indispensable  requisite  of  the  verdict  in  this  case,  to 
authorize  the  judgment  pronounced,  that  it  should  have  con- 
tained the  value  of  the  property  of  which  the  jury  found  the 
prisoner  guilty  of  stealing;  and  as  that  does  not  appear,  the 
Circuit  Court  erred  in  not  arresting  the  judgment. 

The  judgment  of  the  Circuit  Court  is  reversed. 

Judgment  reversed. 

411 


395  YANDAL1A. 


Anglin  t>.  Nott. 


[*395]     *VALENTINE  S.  ANGLIN,  appellant,  v.  ROYAL 
A.  NOTT,  appellee. 

Appeal  from  Clark. 

Where  a  summons  is  issued  not  under  the  seal  of  the  Court,  the  Court 
should,  on  motion,  quash  it.     It  is  error  to  refuse  such  a  motion. 

THIS  was  an  action  instituted  by  the  appellee  against  the  ap- 
pcllant,  in  the  Clark  Circuit  Court.  The  seal  to  the  summons 
was  omitted  by  mistake.  The  summons  -was  returned  by  the 
sheriff,  with  the  following  indorsement:  "  Executed  October 
23d,  1837.  J.  Stockwell,  Shff."  The  defendant  in  the  Court 
below  moved  to  quash  the  summons  because  it  was  not  under 
seal.  This  motion  was  overruled  by  the  Court,  and  judgment 
rendered  for  the  appellee,  for  want  of  a  plea,  for  $175  and 
costs.  The  appellant  excepted  to  the  opinion  of  the  Court 
overruling  his  motion,  and  tendered  a  bill  of  exceptions  which 
was  signed  and  sealed  by  the  Court.  The  cause  was  heard  at 
the  November  term,  1837,  of  the  Clark  Circuit  Court,  before 
the  Hon.  Justin  Harlan. 

O.  B.  FICKLIN,  for  the  appellant,  cited  Ditch  v.  Edwards, 
ante  127  ;  Breese  3 ;  3  Chit.  Pract.  title  Process  ;  1  Bac.  Abr. 
title  Abatement;  13  Johns.  127;  2  Johns.  190  ;  5  Johns.  166  ; 
5  Monroe,  121 ;  1  Chit.  Plead. ;  K.  L.  486-7.  (Gale's  Stat.  529.) 

COOPEK,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
The  record  in  this  case  shows,  that  upon  the  first  appearance 
of  the  defendant,  by  his  counsel,  in  the  Court  below,  he  moved 
the  Court  to  quash  the  summons,  upon  several  grounds,  one  of 
which  was  that  the  summons  was  not  issued  under  the  seal  of 
the  Court.  This  motion  the  Court  overruled,  and  the  defend- 
ant making  no  further  defense,  judgment  by  default  was  ren- 
dered against  him. 

The  statute  authorizing  a  summons  to  issue  in  a  case  like  the 
present  is  explicit  as  to  the  manner  of  its  authentication.  It 
declares  in  express  terms  that  it  shall  be  under  the  seal  of  the 
Court,  and  as  the  defendant  did  not  by  his  appearance  or 
otherwise  dispense  with  this  requisite  of  the  statute,  and  the 
defect  appearing  upon  the  face  of  the  process,  the  Court  should 
have  sustained  the  motion  and  quashed  the  summons. 

CITED:    Judgment,  when  unauthorized.    1'2  111.  233. 

412 


DECEMBEE  TEEM,  1837.  395 

Roberts  v.  Garen. 

The  judgment  of  the  Court  below  is  therefore  reversed  with 

costs. 

Judgment  reversed. 

See  Hanimm  v.  Thompson,  ante  238  ;  Easton  et  al.  v.  Altum,  ante  250  : 
Pearce  et  al.  t>.  Swan,  ante  266. 


E.  EGBERTS,  appellant,  v.  SILAS  C.      [*396] 
GAREN,  appellee. 

Appeal  from  Wayne. 

CONTRACTS — CONSIDERATION. — A  promise  by  a  purchaser  of  a  portion  of 
the  public  Jands  of  the  United  States  made  subsequent  to  his  purchase,  to 
pay  for  improvements  made  thereon  previous  thereto,  is  without  considera- 
tion and  void. 

SAME— PROOF. — In  an  action  to  recover  upon  a  promise  to  pay  for  im- 
provements made  upon  the  public  lands  of  the  United  States,  it  is  incumbent 
upon  the  plaintiff  to  prove  not  only  the  promise  of  the  defendant,  but  that 
the  improvements  which  are  the  consideration  of  the  promise  were,  at  the 
time  the  contract  was  entered  into,  upon  the  lands  of  the  government. 

WITNESSES. — Where  a  witness  is  sworn  in  chief,  he  is  bound  to  state  all 
the  facts  in  his  knowledge  that  are  applicable  to  the  case  and  that  can  be 
proved  by  parol ;  and  it  can  make  no  difference  whether  such  testimony  is 
given  in  answer  to  the  interrogatories  of  the  party  against  whom  it  operates 
or  not. 

O.  B.  FICKLIN,  for  the  appellant. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court ; 

This  action  was  brought  upon  a  promise  to  pay  for  an  im- 
provement upon  Congress  land.  Upon  the  trial  of  the  cause, 
the  defendant's  counsel  moved  the  Court  to  instruct  the  jury, 
"  That  if  it  appeared  from  the  evidence  adduced  by  the  plaint- 
iff, that  the  defendant  had  entered  the  land  before  the  promise 
to  pay  for  said  improvement  was  proved  to  have  been  made, 
that  then  they  must  find  for  the  defendant."  This  instruction 
the  Court  refused,  but  instructed  the  jury  that  if  such  evi- 
dence was  given  by  any  witness  without  being  called  for  by 
the  plaintiff  they  must  not  regard  it,  otherwise  they  should. 

The  refusal  of  the  Court  to'  give  the  instructions  asked  for, 
and  also  the  giving  the  instructions  which  it  did  give,  are  as- 
signed for  error  by  the  defendant.  The  principle  is  uncontro- 
verted  that  a  promise  that  is  not  founded  upon  either  a  legal 
or  moral  obligation  is  not  binding  in  law  ;  and  in  the  case  of 

CITED  :  Promise,  when  without  consideration.  16  111.  62,  citing  other 
authorities  and  showing  statutory  change  in  the  law. 

413 


396  YANDALIA. 


Roberts  *.  Garen. 


Carson  v.  Clark  (ante  113)  this  Court  decided  that  a  promise 
made  by  a  purchaser  of  government  land,  to  pay  for  improve- 
ments upon  such  land,  was  a  promise  within  this  rule,  and 
therefore  void,  where  the  •  promise  was  made  after  the  prom- 
isor had  acquired  title  to  the  land  and  improvements  by  pur- 
chase from  the  government.  It  was  incumbent,  then,  upon 
the  plaintiff  in  this  case,  to  have  proved  not  only  the  promise 
of  me  defendant,  but  that  the  improvements  which  were  the 
consideration  of  the  promise,  were,  at  the  time  the  contract 
was  entered  into,  upon  the  land  of  the  government,  and  not 
upon  the  land  of  the  defendant.  If  he  had  failed  in  making 
out  either  of  these  points,  he  was  not  entitled  to  recover ; 

and  any  testimony  which  showed  the  promise  of  the 
[*397]  ^defendant  to  have  been  subsequent  to  his  purchase  of 

the  land  upon  which  the  improvements  were  made, 
was  entitled  to  equal  weight,  whether  adduced  by  the  plaintiff 
or  defendant.  If  the  plaintiff's  own  testimony  show  a  state 
of  facts  which  defeats  his  title  to  recover,  the  defendant  is  en- 
titfed  to  the  benefit  of  it,  and  is  under  no  obligation  to  adduce 
testimony  by  way  of  confirmation  and  to  make  assurance  doubly 
sure.  The  Court  erred  therefore  in  refusing  the  instructions 
asked  for,  and  also  in  the  instructions  which  it  gave.  The  dis- 
tinction drawn  by  the  Court  in  this  instruction  with  respect  to 
the  different  degrees  of  credit  which  the  jury  should  give  to 
those  statements  of  the  plaintiff's  witnesses  which  were  drawn 
from  them  by  his  interrogatories  or  examination,  and  such  as 
were  voluntarily  made,  or  made  upon  the  cross-examination  of 
the  defendant,  is  without  any  foundation.  The  circumstance 
of  a  witness  being  called  to  support  the  plaintiff's  cause, 
does  not  render  illegal  or  discredit  such  portions  of  his  testi- 
mony as  may  make  against  his  cause,  whether  the  facts  were 
brought  out  by  the  plaintiff's  examination  or  otherwise.  When 
a  witness  is  sworn  in  chief,  he  is  bound  to  state  all  the  facts  in 
his  knowledge  that  are  applicable  to  the  case,  and  may  legally 
be  proved  by  parol ;  and  neither  the  Court  nor  the  party  call- 
ing him  can  separate  his  testimony  and  take  such  part  as  they 
may  like  and  reject  the  balance. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  is  remanded  with-  directions  that  the  Court  pro- 
ceed to  rehear  the  case  conformably  to  this  opinion. 

Judgment  reversed. 

414 


DECEMBER  TERM,  1837.  397 

Bell  v.  The  People. 


WILLIAM  BELL,  plaintiff  in  error,  v.  THE  PEOPLE  OF 
THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  the  Municipal  Court  of  the  City  of  Chicago. 

JURISDICTION— MUNICIPAL  COURT. — The  criminal  jurisdiction  of  the  Mu- 
nicipal Court  of  the  City  of  Chicago,  is  confined  to  the  territorial  limits  of 
said  city. 

INDICTMENT. — An  indictment  purporting  to  be  found  by  "  grand  jurors 
chosen,  selected,  and  sworn  in  and  for  the  City  of  Chicago  and  County  of 
Cook,"  is  bad,  and  should  be  quashed  on  motion. 

STATUTES — CONSTRUCTION. — The  "Act  supplemental  to  An  Act  to  incor- 
porate the  City  of  Chicago.'1''  has  no  application  to  criminal  proceedings. 

THE  plaintiff  in  error  was  indicted  and  convicted  of  the 
crime  of  larceny,  at  the  November  term,  1837,  of  the  Munici- 
pal Court  of  the  City  of  Chicago,  and  sentenced  to  the  peni- 
tentiary. The  indictment  was  signed  "  N.  B.  Judd,  Attor- 
ney for  the  People." 

*The  following  bill   of  exceptions,  taken  on  the     [*39S] 
trial  of  the  cause  in  the  Court  below,  shows  the  points 
in  the  case : 

"Be  it  remembered  that  upon  the  arraignment  of  the  pris- 
oner in  this  cause,  for  trial,  and  before  pleading,  the  defend- 
ant, by  Butterfield,  his  counsel,  moved  to  quash  the  indict- 
ment in  this  cause,  on  the  ground  that  the  indictment  alleges 
that  the  bill  was  found  a  "  true  bill"  by  a  grand  jury,  chosen, 
selected  and  sworn  in  and  for  the  city  of  Chicago  and  county 
of  Cook,  when  the  jury  in  fact  came  from  the  City  of  Chicago, 
in  said  county  ;  which  motion  was  overruled  by  the  Court. 
To  which  opinion  of  the  said  Court,  the  said  defendant,  by 
his  counsel,  excepts,  and  prays  that  the  said  bill  of  exceptions 
may  be  signed  and  sealed  by  the  Court,  and  make  a  part  of 
the  record  herein,  which  is  accordingly  done. 

And  be  it  further  remembered,  that  the  prisoner  upon  the 
same  occasion,  and  at  the  same  time,  moved  to  quash  the  said 
indictment  on  the  ground  that  the  said  indictment  was  not 
signed  by  any  officer  in  behalf  of  the  State,  duly  authorized 
to  act  and  officiate  as  State's  Attorney.  And  also,  that  the 
said  indictment  was  not  signed  by  the  State's  Attorney  of  the 
7th  Judicial  Circuit,  nor  by  any  officer  appointed  by  the  Court 
to  discharge  the  duties  of  State's  Attorney ;  but  was  signed 
by  the  City  Attorney  of  said  city,  duly  appointed  by  the  Com- 
mon Council  thereof  ;  whose  duty  it  is  made  by  an  ordinance 
of  said  council,  to  prosecute  for  the  people,  etc.,  in  said  Mu- 
nicipal Court ;  which  motion  was  also  overruled. 

415 


YAKDALIA. 


Bell  v.  The  People. 


To  which  decisions,  the  said  defendant,  by  his  counsel,  ex- 
cepts,  and  prays  the  Court  to  sign  and  seal  this  his  bill  of  excep- 
tions, which  is  accordingly  done. 

THOMAS  FORD,  [L.  s.] 
Judge  of  the  Municipal  Court." 

JAMES  GRANT,  for  the  plaintiff  in  error,  cited  Acts  of  1837, 
77  etseq.\  E.  L.  title  Atloi^ney  General. 

JJ.  F.  LINDER,  Attorney  General,  for  the  defendants  in 
error. 

"WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
The  plaintiff  in  error  was  convicted  in  the  Municipal  Court 
of  the  City  of  Chicago,  upon  an  indictment  found  by  "  The 
grand  jurors  chosen,  selected  and  sworn  in  and  for  the  city  of 
Chicago  and  county  of  Cook."  Upon  his  arraignment,  the 
prisoner,  by  his  counsel,  moved  the  Court  to  quash  the  indict- 
ment. The  Court  overruled  this  motion,  and  proceeded  to  the 
trial  and  conviction  of  the  defendant.  This  opinion  of  the 
Court  is  assigned  for  error.  In  deciding  this  point,  it  is 
necessary  to  look  to  the  act  of  the  legislature  incorporating 
the  city  of  Chicago.  By  this  act  the  jurisdiction  and  powers 
of  the  Municipal  Court  of  the  city  were  created  and 
[*399]  defined ;  and  it  can  not  legally  exercise  *any  which 
are  not  thus  conferred.  The  69th  section  of  the  act 
alluded  to,  provides,  "That  there  shall  be  established  in  the 
said  city  of  Chicago,  a  Municipal  Court,  which  shall  have 
jurisdiction  concurrent  with  the  Circuit  Courts  of  this  State, 
in  all  matters,  civil  or  criminal,  arising  within  the  limits  of  said 
city."  Acts  of  1837,  75.  The  72d  section  further  provides, 
"  That  the  grand  and  petit  jurors  of  said  Municipal  Court,  shall 
be  selected  from  the  qualified  inhabitants  of  said  city."  By  these 
provisions  the  territorial  limits  of  the  city  of  Chicago  are  made 
the  boundaries  of  the  criminal  jurisdiction  of  the  Municipal 
Court;  and  within  those  limits  the  jurors  must  be  selected, 
and  can  then  only  investigate  offenses  committed  within  the 
same.  The  law  gives  to  the  Municipal  Court  concurrent  juris- 
diction with  the  Circuit  Courts.  This  jurisdiction  is  general 
as  to  the  subject  matter,  but  limited  in  point  of  territory.  It 
surely  requires  no  argument  to  prove  that  a  Circuit  Court  sit- 
ting in  one  county,  can  not  try  and  convict  a  man  for  an  offense 
committed  in  another,  or  that  it  can  not  impanel  a  grand  jury 
from  another  county,  to  inquire  into  offenses  committed  with- 
in the  one  in  which  it  is  sitting.  The  same  rule  is  applicable 
to  the  Municipal  Court ;  and  the  grand  jurors  must  be  select- 

416 


DECEMBER  TEEM,  1837.  399 

Willis  v.  The  People. 

ed  in  and  for  the  city  of  Chicago  alone.  The  indictment  in 
this  case  is  found  by  "  grand  jurors  chosen,  selected  and  sworn 
in  and  for  the  city  of  Chicago  and  county  of  Cook."  They 
are  taken  as  well  from  the  county  as  the  city,  if  we  look,  as 
we  must,  to  the  indictment  alone,  for  the  evidence  of  that  fact. 
This  is  wrong,  and  the  motion  to  quash  the  indictment  ought 
to  have  been  sustained.  The  supplement  to  the  act  incorpo- 
rating the  city  has  been  cited.  That- act  has  no  application  to 
criminal  proceedings. 

The  judgment  of  the  Circuit  Court  is  reversed. 

Judgment  reversed. 

Note.    See  the  case  of  Beaubien  v.  Brinckerhoff,  2  Scain. 


AECHIBALD  P.  WILLIS,  plaintiff  in  error,  v.  THE  PEO- 
PLE OF  THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Gallatin. 

CRIMINAL  TAW — CERTAINTY. — Certainty,  in  criminal  proceedings,  -where 
attainable,  will  not  be  dispensed  with. 

INDICTMENTS — NAMES. — It  is  well  settled  that  in  indictments  for  offenses 
against  the  persons  or  property  of  individuals,  the  Christian  and  surnames 
of  the  parties  injured,  must  be  stated,  if  known.  In  cases  where  the  own- 
ers are  unknown,  the  fact  must  be  so  stated. 

*CONTINUANCE— ADMISSION.— The  admission  of  an  affidavit  for  a    [*400] 
continuance,  on  the  ground  of  the  absence  of  a  material  witness,  in 
evidence,  is  an  admission  of  the  truth  of  the  facts  which  the  affidavit  states 
can  be  proved  by  such  witness,  and  they  can  not  be  contradicted. 

PRACTICE. — The  propriety  of  introducing  affidavits  in  criminal  cases  is 
not  sanctioned. 

THIS  cause  was  tried  at  the  September  term,  1837,  of  the 
Gallatin  Circuit  Court,  before  the  Hon.  "Walter  B.  Scates. 
The  defendant  in  the  Court  below  was  convicted  of  stealing  a 
pair  of  slices,  of  the  value  of  $1.75,  and  sentenced  to  pay  a 
fine  of  $10,  and  to  be  confined  in  the  county  jail  for  one 
month.  On  the  trial  the  following  bill  of  exceptions  was 
taken: 

"  Be  it  remembered  that  on  the  calling  of  this  case  for  trial, 
the  defendant  made  the  following  affidavit  for  continuance,  to- 
wit :  '  This  defendant  makes  oath  that  Absalom  Ashley  is  a 
material  witness  for  him  in  this  case,  by  whom  he  expects  and 
believes  he  can  prove,  that  if  he  took  said  shoes  at  all,  he  took 
them  in  the  way  of  a  joke,  and  without  any  intention  of  steal- 

CITED:  Affidavit  for  continuance,  contradiction  of.    21  111.  369.     Admis- 
sion of  affidavits — Act  not  applicable  to  criminal  proceedings.  60  Id.  170. 
VOL.  1-27  417 


-l ....  VANDALIA. 


Willis  v.  The  People. 


ing  them.  That  said  Ashley  was  believed  by  him  to  be  one 
of  the  owners  of  said  shoes ;  and  he  can  not  prove  the  sane 
facts  by  any  other  persons  that  he  knows  of.  That  the  said 
Ashley  left  this  country  for  Kentucky,  shortly  after  the  find- 
ing of  this  bill  at  the  last  July  term,  and  before  this  affiant 
knew  the  same  was  found ;  and  he  has  been  advised  by  his 
counsel  that  he  could  not  take  his  de position  without  the  con- 
sent of  the  State's  attorney,  even  if  he  had  known,  which  he 
did  not,  in  what  county  in  Kentucky  the  said  witness  lived. 
This  affiant  further  says  that  he  has  only  found  out  since  this 
Court  commenced,  that  the  said  witness  resides  in  Hopkins 
county,  Ky.;  and  that  he  believes  that  he  can  obtain  the  dep- 
osition of  said  witness  by  the  «ext  term  of  this  Court,  pro- 
vided the  Hon.  State's  attorney  will  consent  thereto.  This 
affidavit  is  not  made  for  delay,  further  than  that  thereby  to 
obtain  justice. 

his 
AKCHD.  M    P.  WILLIS.' 

mark. 

And  moved  the  court  for  a  continuance  of  the  case  until  the 
next  term  of  this  Court.  Whereupon  the  State's  attorney 
agreed  to  admit  the  said  affidavit  in  evidence  to  the  jury,  and 
claimed  to  try  the  cause  at  this  term.  Whereupon,  after  the 
evidence  closed,  the  defendant's  counsel  moved  the  Court  for 
the  following  instruction,  to-wit :  That  what  was  stated  in  the 
affidavit  should  be  positively  taken  as  incontrovertible  by 
other  evidence.  Whereupon  the  Court  instructed  the  jury 
that  they  should  give  such  weight  to  the  affidavit  of  said  de- 
fendant, and  no  more,  as  if  the  witness  therein  named  had  been 
present  and  sworn  to  the  fact  or  facts  therein  stated ;  and  that 
it  was  competent  for  the  prosecutor  to  prove  the  facts 
[*401]  to  be  otherwise;  and  that  they  might  weigh  *the  evi- 
dence as  expected  by  the  defendant  to  be  made  by  his  ab- 
sent witness,  and  give  such  weight  to  it  in  connection  with  the 
other  evidence  as  they  pi  eased, 'acting  under  '  their  oaths  as 
jurymen.  Whereupon  the  jury  found  the  defendant  guilty; 
and  thereupon  the  defendant  moved  for  a  new  trial,  on  the 
ground  among  others,  that  the  Court  misinstructed  the  ^jury  as 
above  stated;  which  motion  the  Court  overruled,  and  also 
overruled  the  motion  of  said  defendant  in  arrest  of  judgment, 
made  on  the  ground  assigned,  that  the  owners  of  the  goods 
charged  to  have  been  stolen,  were  not  sufficiently  described  by 
the  initials  of  their  names.  To  which  opinions  of  the  Court 
in  so  instructing  the  jury  as  aforesaid,  and  in  so  overruling 
the  motions  for  a  new  trial,  and  in  arrest  of  judgment,  the 

418 


DECEMBER  TEEM,  1837.  401 

Willis  v.  The  People. 

defendant  by  his  counsel  excepts,  and  prays  this  his  bill  of  ex- 
ceptions to  be  sealed  and  allowed. 

WALTER  B  SCATES."  [L.  s.] 

H.  EDDY,  for  the  plaintiff  in  error. 

U.  F.  LINDER,  Attorney  General,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
At  the  July  term,  1837,  of  the  Gallatin  Circuit  Court,  Willis 
was  indicted  for  larceny,  and  at  the  September  term  follow- 
ing, tried  and  convicted.  To  revise  the  judgment  rendered  on 
the  conviction  in  this  case,  the  present  writ  of  error  is  prose- 
cuted, and  two  grounds  are  assigned  and  relied  on,  as  causes 
of  reversal. 

1.  That  the  Circuit  Court  should   have  arrested  the  judg- 
ment, because  the  owners  of  the  goods  charged  to  have  been 
stolen  are  not  sufficiently  described. 

2.  That  the  Court  misdirected  the  jury  as  to  the  effect  of 
the  affidavit,  admitted  by  the  prosecution,  to  be  read  in  evi- 
dence on  the  trial. 

As  to  the  first  ground,  it  is  well  settled,  that,  in  indictments 
for  offenses  against  the  persons  or  property  of  individuals,  the 
Christian  and  surnames  of  the  parties  injured,  must  be  stated, 
if  the  injured  party  be  known.  The  name  so  stated  must  be 
either  the  real  name  of  the  party  injured,  or  that  by  which 
he  is  usually  known.  (Arch.  Crim.  Plead.  30,  31,  32 ;  Haw- 
kins C.  25,  |  71-2.)  In  cases  where  the  owners  are  unknown, 
it  must  be  so  stated. 

In  the  present  case,  the  indictment  alleges  the  goods  to  be 
the  property  of  T.  D.  Hawke  and  E.  Dobbins,  doing  business 
in  the  town  of  Equality,  under  the  style  and  firm  of  T.  D. 
Hawke  &  Co.  This  was  clearly  erroneous,  and  there  is  no 
reason  whatever  to  justify  the  omission  to  state  the  Christian 
names  of  the  owners.  It  appears  that  the  residence  of  the 
owners  was  known,  and  the  least  inquiry  would  have  enabled 
the  prosecution  to  have  obtained  and  inserted  the 
Christian  names  at  length.  Certainty  in  *crimiual  [*402] 
proceedings,  where  attainable,  will  not  be  dispensed 
with;  and  it  becomes  highly  essential  to  enable  a  party  to 
plead  either  a  former  acquittal  or  conviction,  in  case  of  a 
second  prosecution  for  the  same  offense. 

In  regard  to  the  second  objection,  it  appears  from  the  bill  of 
exceptions,  that  an  affidavit  made  for  the  purpose  of  continu- 
ing the  cause  to  another  term,  in  which  the  defendant  de- 
clared he  could  prove,  by  an  absent  witness,  certain  facts  which, 

419 


402  VANDALIA. 


Willis  v.  The  People. 


if  true,  disproved  his  guilt,  was  agreed  by  the  prosecuting 
attorney  to  be  admitted  as  evidence  in  the  cause,  and  was  ac- 
cordingly read  to  the  jury  as  such,  under  a  misconception  of 
the  statute  relating  to  similar  admissions  in  civil  cases.  The 
Court,  however,  instructed  the  jury  that  they  might  give  to 
the  facts  stated  such  weight  as  they  would  give  if  the  witness 
was  present  and  had  stated  them  himself,  and  that  they  might 
be  contradicted.  The  instructions  of  the  judge  on  the  effect 
of  the  facts  contained  in  the  affidavit,  and  its  admission  to  the 
jury,  were  most  clearly  erroneous.  The  prosecution  having 
admitted  the  affidavit  as  evidence,  admitted  tile  truth  of  the 
statements  therein  contained  ;  and  having  done  so  was  not  at 
liberty  to  impeach  or  contradict  them.  By  his  voluntary  act, 
;md  to  prevent  a  continuance  of  the  cause  to  another  term,  he 
precluded  himself  from  the  exercise  of  the  right.  Such  has 
been  the  decisions  in  civil  cases,  and  the  rule  ought  not  to  be 
relaxed  in  a  criminal  one.  It  is  not,  however,  meant  to  recog- 
nize the  propriety  of  the  introduction  of  affidavits  in  criminal 
cases,  though  under  some  peculiar  cases  they  might  be  intro- 
duced by  consent,  nor  to  sanction  a  practice  of  admitting  those 
of  the  accused  in  evidence  in  any  case,  whether  for  the  pur- 
pose of  preventing  a  continuance  of  the  cause,  or  for  any 
other  object. 

The  judge  should  either  have  continued  the  cause  on  the  ap- 
plication under  the  affidavit,  or  denied  it;  but  having  per- 
mitted the  parties  to  introduce,  by  agreement,  the  deposition, 
it  should  have  been  given  to  the  jury  without  the  right  to  im- 
peach it ;  and  he  should  have  so  instructed  the  jury. 

The  defect  in  the  indictment,  and  the  erroneous  instructions 
of  the  judge,  require  a  reversal  of  the  judgment  of  the  Cir- 
cuit Court  of  Gallatin  county,  and  it  is  accordingly  ordered. 

Judgment  reversed. 

420 


DECEMBER  TERM,  1837.  403 

Key  v.  Collins. 


^MARSHALL  KEY,  impleaded  with  Asher  E.  [*403] 
Miller  and  John  E.  Miller,  plaintiff  in  error, 

i  v.  JAMES  A.  COLLINS,  administrator  of  the  estate  of 
William  H.  Witham,  deceased,  defendant  in  error. 

Error  to  Morgan. 

PROCESS  —  ISSUE  TO  DIFFERENT  COTJNTY.  —  Original  process  can  be  issued 
to  a  different  county  from  that  in  which  the  action  is  commenced,  in  the 
three  follow"^  cases  only: 

1.  Wl  en  th  '  plaintiff  resides  in  the  county  in  which  the  action  is  com- 
menced, a  i,i  1  16  cause  of  action  accrued-  in  such  county. 

2.  Where  the  contract  is  made  specifically  payable  in  the  county  in  which 
the  action  is  brought.     In  this  case,  no  regard  is  paid  to  the  residence  of  the 
plaintiff. 

3.  Where  there  are  several  defendants  residing  in  different  counties, 
and  the  action  is  commenced  in  the  county  in  which  some  one  of  the  defend- 
ants reside. 

SAME  —  PLEADING.  —  Where  process  is  issued  to  a  foreign  county,  the 
declaration  should  contain  an  averment  of  the  facts  necessary  to  authorize 
the  emanation  of  the  writ  to  such  foreign  county.  An  averment  that  the 
cause  of  action  accrued  in  the  county  where  the  suit  was  brought,  without 
averring  that  the  plaintiff  resided  there  at  the  time  of  the  commencement  of 
the  suit,  would  not  be  sufficient. 

SAME—  PRACTICE.  —  An  affidavit  of  the  facts  which  give  the  Court  juris- 
diction is  not  necessary  to  authorize  the  issuing  of  process  to  a  foreign 
county  ;  and  if  it  is  made  it  does  not  thereby  become  a  part  of  the  record,  or 
dispense  with  the  averment  of  those  facts  in  the  declaration. 

J.  L  AM  BORN,  L.  DAVIS,  F.  FOEMAN,  for  the  plaintiff  in  error. 
MURRAY  MCDONNELL,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  debt  commenced  in  the  Circuit  Court 
of  Morgan  county.  The  summons  was  directed  to  the  sheriff 
of  Pike  county,  and  by  him  returned  served  on  Key,  one  of 
the  defendants  below,  the  others  not  found.  The  ^declaration 
is  in  the  usual  form,  on  two  promissory  notes,  stating  them  to 
be  made  at  Naples,  in  the  county  of  Morgan,  but  it  contain* 
no  averment  that  the  county  of  Morgan  is  the  residence  of  the 
plaintiff,  or  that  the  notes  were  specifically  made  payable  in 
county. 


CITED-  Process  issued  to  a  different  county.  1  Scam.  547,  548;  2  Scam.  259; 
4  Scam.  303;  1  Gil.  35;  11  111.  648.  Jurisdiction,  doctrine  as  to.  2  Scam.  274; 
4  Gil.  118;  overruled.  13  111.  432,  442;  declaration  should  aver  what.  4  Gil. 
558;  11  111.476. 

421 


403  YANDALIA. 


Key  v.  Collins. 


Previous  to  the  issuing  of  the  summons,  the  attorney  for 
the  plaintiff  tiled  an  affidavit  stating  that  "The  suit  is  instituted 
to  recover  two  notes  of  hand  given  to  Withamin  his  lifetime, 
and  that  the  said  contracts  were  entered  into  between  the  jar- 
ties  in  the  county  of  Morgan  and  the  notes  executed  there ; 
but  that  the  defendant  had  since  removed  to  the  county  of 
Pike.  On  the  return  of  the  summons,  the  defendant,  Key,  by 
his  attorney,  moved  the  Circuit  Court  to  dismiss  the  cause  for 
want  of  jurisdiction,  which  motion,  was  overruled  and  judg- 
ment given  for  the  plaintiff  below  by  default.  The  point  re- 
lied on  to  reverse  this  judgment  is,  that  the  Circuit 
Court  had  no  jurisdiction  over  *the  person  of  the  de- 
fendant below.  This  Court  decided  in  the  case  of 
Clark  v.  H&rknesS)  (ante  56),  "  That  the  Circuit  Courts  are 
limited  in  their  jurisdiction  to  the  several  counties  in  which  they 
are  erected,  unless  there  be  by  some  particular  law  an  express 
power  extending  that  jurisdiction  in  specified  and  enumerated 
cases."  With  respect  to  the  emanation  of  process  and  the 
power  to  reach  defendants  who  reside  out  of  the  particular 
county  in  which  the  Court  exists,  and  to  compel  their  appear- 
ance, it  is  necessarv  to  examine  the  act  of  the  legislature  of 
30th  December,  1830  (R  L.  145;  Gale's  Stat.  166).  By  the 
provisions  of  this  act.  which  is  amendatory  to  the  '•'•Act 
concerning  Courts  of  Law"  passed  January  29,  1827,  it  is 
enacted,  "That  so  much  of  the  act  entitled  an' act  con- 
cerning practice  in  courts  of  law,  as  authorizes  the  direct- 
ing of  original  process  to  the  sheriff  or  coroner  of  any 
other  county  than  the  one  in  which  the  suit  is  commenced, 
be,  and  the  same  is  hereby  repealed.  And  that  hereafter 
it  shall  not  be  lawful  for  any  plaintiff  to  sue  a  defendant  out  of 
the  county  where  the  latter  resides  or  may  be  found,  except  in 
cases  where  the  debt,  contract  or  cause  of  action  accrued  in 
the  county  of  the  plaintiff,  or  where  the  contract  may  have 
specifically  been  made  payable;  when  it  shall  be  lawful  to  sue 
in  such  county,  and  process  may  issue  against  the  defendant  to 
the 'sheriff  of  the  county  where  he  resides:  Provided,  That 
where  there  are  several  defendants  living  in  different  counties, 
the  plaintiff  may  sue  either  in  the  county  where  the  cause  of 
action  arose,  or  in  any  county  where  one  or  more  of  said  de- 
fendants may  reside,  and  shall  have  like  process  against  such 
as  reside  out  of  the  county  where  the  action  shall  be  brought, 
as  above." 

This  act  authorizes  original  process  to  be  directed  to  a  dif- 
ferent county  from  that  in  which  the  action  is  commenced,  in 
the  three  following  cases  only :  1st.  The  plaintiff  may  com- 
mence an  action  in  the  county  where  he  resides,  if  the  cause 

422 


DECEMBER  TERM,  1837.  404 

Key  v.  Collins. 

of  action  accrued  in  such  county.  2d.  It  authorizes  an  action 
to  be  commenced  in  any  county  where  the  contract  is  specif- 
ically made  payable,  without  regard  to  the  residence  of  the 
plaintiff.  And  3d.  Where  there  are  several  defendants  living 
in  different  counties,  the  plaintiff  may  commence  his  action 
either  in  the  county  where  the  cause  of  action  accrued  and  in 
which  he  resides,  or  in  any  county  where  one  or  more  of  the 
defendants  may  reside. 

If  the  plaintiff  had  a  right  to  direct  his  summons  to  Pike 
county,  it  must  be  under  that  part  of  the  statute  which  au- 
thorizes a  defendant  to  be  sued  in  the  county  where  the  plaint- 
iff resides.  But  tinder  this  portion  of  the  statute  two  facts 
must  concur.  The  cause  of  action  must  accrue  and  the  plaint- 
iff must  reside  in  the  same  county.  The  declaration  contains 
no  averment  as  to  the  residence  of  the  plaintiff,  and 
the  affidavit  merely  states  that  the  *notes  were  ex-  [*405] 
ecuted  in  Morgan  county,  but  says  nothing  as  to  the 
residence  of  the  plaintiff.  In  this  respect  the  affidavit  is 
clearly  insufficient,  and  did  not  authorize  the  clerk  to  issue  the 
summons  to  Pike  county. 

Had,  however,  the  affidavit  been  sufficient  as  to  both  the 
residence  of  the  plaintiff  and  the  place  where  the  cause  of  ac- 
tion accrued,  still,  according  to  the  decision  of  the  case  of 
Clark  v.  Harkness,  a  special  averment  ought  to  have  been 
made  in  the  declaration  that  the  plaintiff  was  at  the  time  the 
suit  was  commenced  a  resident  of  Morgan  county.  The  sug- 
gestion contained  in  that  case  of  the  propriety  of  filing  an  affi- 
davit seems  only  intended  as  evidence  to  the  clerk,  (where  the 
summons  issues  before  the  declaration  is  filed,)  that  in  issuing 
a  summons  to  another  county  there  is  no  attempt  to  stretch 
the  jurisdiction  of  the  Court  to  cases  and  persons  improperly, 
and  thus  harass  those  over  whom  the  Court  possesses  no  juris- 
diction. The  affidavit  in  this  case  is  not  required  by  the  stat- 
ute, and  is  not  essential  to  authorize  the  issuing  of  process  to 
a  different  county  than  that  from  which  it  emanates.  It  con- 
sequently is  no  part  of  the  record,  and  its  insertion  therein 
does  not  dispense  with  the  averments  in  the  declaration,  that 
the  cause  of  action  accrued  and  the  plaintiff  resided  in  the 
same  county.  For  the  want  of  an  averment  that  the  plaintiff 
resided  in  Morgan  county  at  the  time  of  the  commencement 
of  this  suit,  the  judgment  must  be  reversed  with  costs. 

Judgment  reversed. 

423 


405  VANDALIA. 


Guild  et  al.  v.  Johnson.    Davis  v.  Hoxey. 


ALBERT  H.  GUILD  and  JAMES  T.  DURANT,  appellants, 
v.  SETH  JOHNSON,  appellee. 

Appeal  from  the  Municipal  Court  of  the  City  of  Chicago. 

JUDGMENT— EKROR. — Where  in  an  action  of  debt,  a  judgment  for  dam- 
ages is  rendered,  the  judgment  will  be  reversed;  but  the  error  will  be  cor- 
rected in  this  Court,  and  such  a  judgment  given  as  the  Court  below  should 
have  rendered.4 

THIS  was  an  action  of  debt  brought  by  the  appellee  against 
the  appellants  in  the  Municipal  Court  of  the  City  of  Chicago. 
Judgment  was  rendered  for  the  plaintiff  below,  for  damages 
only,  and  costs  of  suit. 

J.  K.  SCAMMON,  for  the  appellants. 
[*406]        *G.  SPEING,  for  the  appellee. 

Per  Curiam:  Let  the  judgment  be  reversed,  and  let 
judgment  be  rendered  in  this  Court  in  debt  for  the  amount 
of  the  judgment  of  the  Court  below.  The  costs  of  this  Court 
will  be  taxed  against  the  appellants ;  those  in  the  Court  below 
against  the  appellee. 

Judgment  reversed,  and  judgment  rendered  in  this  Court. 

CITED:  Amendment  of  judgment  by  this  Court.    3  Scam.  96;  63  111.  216. 


THEODORUS  DAVIS,  JR.,  plaintiff  in  error,  v.  TRISTRAM 
P.  HOXEY,  defendant  in  error. 

Error  to  Macoupin. 

JURY — PRACTICE. — Where  the  evidence  tends  to  prove  the  issue,  the  jury 
should  be  left  to  determine  the  cause  under  the  evidence  offered.  In  such  a 
case,  the  Court  has  no  power  to  take  the  cause  from  them,  nor  to  advise  them 
that  the  defendant  is  entitled  to  their  verdict. 

A.  COWLES  and  JOSIAH  FISK,  for  the  plaintiff  in  error,  cited 

CITED  :  Refusal  to  give  instructions — When  not  error.     18  111.  454. 

^Appeal  and  errot — Objections  not  raised  below. 

A  judgment  will  not  be  reversed  for  a  technical  error  not  raised  below. 
Bowden  v.  Bow  den,  75  111.  111.  See,  also,  Beaubien  v.  Barbour,  ante  386, 
note;  Arenz  v.  Reihle,  ante  340,  note. 

424 


DECEMBEK  TEEM,  1837.  406 

Davis  v.  Hoxey. 

R  L.  475,  §  37    (Gale's   Slat.  536);  Stark.  Ev.  440,  470  :  1 
Bibb,  209. 

S.  T.  LOGAN  and  E.  D.  BAKEK,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  trespass  de  bonis  asportatis.  The  dec- 
laration is  in  the  usual  form,  and  the  plea,  not  guilty.  On 
the  trial  of  the  cause,  the  plaintiff  offered  evidence  tending  to 
prove  the  issue  ;  and  it  appears  by  the  bill  of  exceptions,  that 
witnesses  established  these  facts.  One  witness  had  seen  two 
hogs  which  had  been  killed  by  the  defendant,  and  supposed 
them  to  belong  to  the  plaintiff,  but  could  not  say,  as  the  hogs 
were  partially  cleaned.  By  another,  that  the  defendant  had 
offered  to  give  the  plaintiff  $22  for  the  killing  of  said  hogs, 
as  he  supposed  from  the  circumstances  that  the  hogs  belonged 
tu  the  plaintiff ;  and  by  another  witness,  it  appeared  that  the 
defendant  had  said  he  would  plead  guilty  to  the  action  of  the 
plaintiff  against  him  for  killing  the  hogs  in  question;  this  was 
said  when  the  defendant  was  talking  of  compromising  the  suit, 
and  in  the  absence  of  the  plaintiff.  This  is  the  substance  of 
the  whole  testimony. 

On  the  application  of  the  defendant  to  instruct  the  jury  as 
in  case  of  a  nonsuit,  the  Court  instructed  the  jury  that  they 
should  find  a  verdict  for  the  defendant,  to  which  an  exception 
was  regularly  taken. 

This  instruction  was  manifestly  erroneous.     The  evidence 
tended  to  prove  the  issue,  and  the  jury  should  have 
been  left  to  ^determine  tlie  case  under  the  evidence     [*407] 
offered.     It  might  have  satisfied  them  of  the  commis- 
sion of  the  trespass  as  laid,  and  the  Court  had  no  power  to 
take  the  case  from  them,  nor  to  advise  them  that  the  defend- 
ant was  entitled  to  their  verdict.     The  facts  of  the  ease  are 
too  obvious  to  admit  of  a  doubt  that  the  jury   should  have 
passed  on  the  evidence ;    and  the  instructions  were  clearly 
wrong. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  a  venire  facias  de  now  will  be  awarded  by  the  Circuit 

Court. 

Judgment  reversed. 

425 


407  YANDALIA. 


Atkinson  v.  Lester  et  al. 


RALPH  ATKINSON,  appellant,  v.  LEWIS  LESTER,  JOHN 
LESTER,  and  MARSHALL  LESTER,  appellees. 

Appeal  from  Cook. 

FOKCIBLE  ENTRY  AND  DETAINER. — To  constitute  a  forcible  entry  and  de- 
tainer under  the  statute  of  this  State,  it  is  not  necessary  that  actual  force 
and  physical  violence  should  be  used.* 

SAME — STATUTE. — The  statute  in  relation  to  forcible  entry  and  detainer 
provides  for  three  cases: 

1.  A  wrongful  or  illegal  entry,  as  contradistinguished  from  a  forcible  and 
violent  one. 

2.  A  forcible  entry  committed  with  actual  force  and  violence. 

3.  A  wrongful  holding  over  by  a  tenant. 

SAME — DESCRIPTION. — In  an  action  for  forcible  entry  and  detainer,  the 
description  of  the  premises  in  the  affidavit  was  as  follows:  "The  premises 
enclosed  by  us,  situate  in  the  County  of  Cook,  and  State  of  Illinois,  being  the 
same  on  which  you  now  reside,  containing  about  one  hundred  acres,  more 
or  less,  and  commonly  called  North  Grove."  Held  that  the  description  was 
sufficient. 

JURY — INSTRUCTIONS. — A  court  is  not  bound  to  instruct  the  jury  upon 
mere  abstract  propositions  of  law,  which  do  not  refer  in  any  way  to  the  ev- 
idence in  the  case." 

THIS  cause  was  tried  at  the  May  term,  1837,  of  the  Cook  Cir- 
cuit Court,  before  the  Hon.  John  Pearson.  Judgment  and 
verdict  were  rendered  for  the  appellees. 

On  the  trial  the  following  bill  of  exceptions  was  taken : 

"  This  was  an  action  of  forcible  entry  and  detainer ^  based  on 
the  following  affidavit: 
'  STATE  OF  ILLINOIS,  ) 

COOK  COUNTY,        \  ss' 

Lewis  Lester  makes  complaint  to  the  undersigned,  two  of 
the  justices  of  the  peace  in  and  for  the  county  aforesaid,  on 
oath,  and  says  that  he,  the  said  Lewis  Lester,  Marshall  Lester 
and  John  Lester,  of  the  county  aforesaid,  are  justly  and  law- 
fully entitled  to  the  possession  of  the  premises  mentioned  and 
described  in  the  notice  hereto  annexed,  situate  in  the  county  of 


CITED:  Forcible  entry,  what  is.  45111.  251.  Instructions,  when  not 
error  to  refuse.  37  111.  352:  38  111.  287. 

^  'Forcible  entry   and  detainer — When  action    lies.     See   Starr  &  C.  111. 
Stat.  Ch.  57,  Sec.  2,  and  numerous  authorities  there  cited. 

^Instructions. — What  need  not  be  given. 

The  Court  is  not  bound  to  instruct  the  jury  on  mere  abstract  propositions 
of  law.  Cummings  r.  McKinney,  4  Scam.  58 ;  Nealey  v.  Brown.  1  Gihn. 
10;  Carbine.  Shearer, 3  Gilm.  482;  Riley  v.  Dickens,  19  111.  29;  Hessing  ». 
McClmkey  37  111.  341 ;  Dole  v.  Kennedy,  38  111.  282;  Am.  Exp.  Co.  v.  Par- 
sons 44  111.  312:  Ashlock  v.  Linder,  50  111.  169;  Ryan  r.  Donnelly, 7 1111. 101  j 
Devlin  r.  People,  104  111.504;  Rupleyr.  Daggett,  74111.  351. 

426 


DECEMBER  TERM,  1837.  407 

Atkinson  v.  Lester  et  al. 

Cook  aforesaid ;  that  said  Lewis,  Marshall  and  John 
were  heretofore,  to  wit,  *on  the    first  day  of  May     [*408] 
last,  in  the  lawful  and  peaceable  possession  of  said 
premises,  and  the  said  Ralph  Atkinson,  afterward,  to  wit,  on 
the  said  first  day  of  May,  willfully  and  forcibly  entered  into 
the  possession  thereof,  and  forcibly  detained,  and  still  detains 
the  possession  of  said  premises,  from  the  said  Lewis,  Marshall 
and  John,  unlawfully,  without  right,  contrary  to  the  statute  in  . 
such  case  made  and  provided;  although   the  said  Marshall, 
Lewis  and  John,  have  caused  a  demand  of  the  possession  of  said 
premises  to  be  made  in  writing  on  the  said  Ralph  Atkinson; 
Wherefore  they  pray  process   against   said  Ralph,  to  answer 
said  forcible  entry  and  detainer. 

LEWIS  LESTEE. 

Subscribed  and  sworn  to  before  the  undersigned 
justices,  this  17th  day  of  August,  A.  D.  1836. 

EDWARD  E.  HUNTER,  J.  P. 
SIDNEY  ABELL,  J.  P.' 

Copy  of  the  notice  alluded  to  in  said  affidavit. 
1  To  Mr.  Ral]  h  Atkinson. 

Sir — We  hereby  demand  immediate  possession  of  the  prem- 
ises, enclosed  by  us,  situate  in  the  county  of  Cook,  and  State 
of  Illinois,  being  the  same  on  which  you  now  reside,  contain- 
ing about  one  hundred  acres  of  land,  more  or  less,  and  com- 
monly called  North  Grove.  Mr.  Edgar  Wait,  our  agent,  is 
authorized  to  receive  the  possession  of  said  premises  from  you 
for  us.  Yours,  etc. 

LEWIS  LESTER  &  Co. 
August  10,  1836.' 

The  Court,  on  the  trial  of  the  cause,  gave  to  the  jury  the 
following,  among  other  instructions : 

•'This  is  an  action  under  our  statute,  and  is  not  governed  in 
all  respects  by  the  laws  quoted  of  other  countries  and  States, 
relating  to  actions  of  the  same  character  in  name.  The  Court 
takes  a  distinction  between  this  law  of  ours  and  the  'English 
law.' 

'  If  you,  the  jury,  shall  believe  from  the  evidence,  that  the 
defendant  entered  wrongfully,  and  without  lawful  right,  and 
then  kept  the  plaintiffs  out  from  regaining  possession,  it  is  suf- 
ficient to  sustain  this  action ;  and  it  is  not  necessary  to  prove 
actual  force  and  physical  violence  to  sustain  the  action.'  To 
which  several  opinions  of  the  Court  the  defendant  then  and 
there  exceptcd,  and  prayed  the  Court  to  sign  and  seal  his  bill 
of  exceptions. 

The  defendant  also  moved  the  Court  to  instruct  the  jury  as 
follows,  among  others,  to  wit : 

427 


408  VAKDALIA. 


Atkinson  v.  Lester  et  al. 


6.  That  a  mere  trespass,  without  other  acts  of  force  and  vi- 
olence, is  not  such  force  and  violence  as  will  constitute  a  forci- 
ble entry  and  detainer. 

[*rt09]         *9.  That  to  constitute  a  forcible  entry,  the  party  must 
enter  with  strong  hand,  or  force  and  violence. 

Which  sixth  in  the  precise  language  stated,  and  ninth  in- 
structions of  the  defendant,  the  Court  refused  to  give ;  but 
the  Court  did  instruct  the  jury,  that  if  they  believed  from  the 
evidence,  the  defendant  first  entered  on  the  land,  in  possession 
of  the  plaintiffs,  unlawfully,  and  took  possession  and  kept  the 
plaintiffs  afterward  out  of  the  possession,  he  was  a  trespasser,  and 
the  law  was  for  the  plaintiffs  ;  and  that  actual  force  and  pos- 
itive violence,  spoken  of  in  the  English  authorities  quoted, 
was  not  necessary  to  sustain  this  action  under  our  statute.  To 
which  opinion  of  the  Court,  the  refusal  of  the  Court  to  give 
the  6th  and  9th  instructions,  the  defendant,  by  his  counsel, 
excepted,  and  prayed  the  Court  to  sign  and  seal  this  his  bill  of 
exceptions,  which  is  done  in  open  Court. 

JOHN  PEARSON.     [L.  s.]" 

JAMES  GEANT,  for  the  appellant,  cited  3  Burrow,  1731 ;  1  Rus- 
sell on  Crimes,  283,  287 ;  1  Yates,  501 ;  Breese,  35. 

T.  FOED,  for  the  appellees. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  forcible  entry  and  detainer ',  prosecuted 
before  two  justices  of  the  peace,  and  removed  by  appeal  to 
the  Circuit  Court  of  Cook  county,  and  by  appeal  from  that 
Court  to  this.  The  following  points  are  made  and  relied  on 
as  grounds  of  error  by  the  appellant. 

1.  That  the  affidavit  and  notice  do  not  contain  a  sufficient 
description  of  the  premises. 

2.  That  the  Circuit  Court  in  refusing  to  instruct  the  jury, 
"  That  a  mere  trespass  without  other  act  of  force  and  violence, 
is  not  such  force  and  violence  as  will  constitute  a  forcible  entry 
and  detainer  ;  and  that  to  constitute  a  forcible  entry  the  par- 
ty must  enter  with  strong  hand  or  force  and  violence,"  and 
also,  in  instructing  the  jury,  "  That  if  they   should   believe 
from  the  evidence  that  the  defendant  entered  wrongfully  and 
without  lawful  right,  and  then  kept  the  plaintiffs  out  from  re- 
gaining possession,  it  is  sufficient  to  sustain  this  action  ;  and  it 
is  not  necessary  to  prove  actual  force  and  physical  violence  to 
sustain  this  action." 

The  description  in  the  affidavit  and  notice  is  "  of  the  prem- 
ises enclosed  by  us,  situate  in  the  county  of  Cook,  and  State  of 

424 


DECEMBER  TERM,  1837.  409 

Atkinson  v.  Lester  et  al. 

Illinois,  being  the  same  on  which  yon  now  reside,  containing 
about  one  hundred  acres  of  land,  more  or  less,  and  commonly 
called  North  Grove."  This  description,  although  general,  is 
sufficiently  certain  for  the  purposes  of  this  action. 

In  considering  the  second  point,  it  may  be  remarked, 
that  the  "^instructions  asked  are  mere  abstract  propo-     [*410] 
sitions  of  law,  and  do  not  in  any  way  refer  to  the  evi- 
dence in  the  cause,  though  they  may  be  referrible  to  a  case  of 
forcible  entry  and  detainer,  and  might  have  been,  as  mere  ab- 
stract questions,  refused  to  be  given  by  the  Court ;  but  they 
were  properly  refused  and  the  instructions  given  were  correct. 

The  act  of  the  legislature  of  this  State  in  regard  to  for- 
cible entry  and  detainer,  is  peculiar  in  its  phraseology,  and 
evidently  provides  a  remedy  for  three  classes  of  cases  under 
the  law. 

The  first  section  declares,  that  "  if  any  person  shall  make 
entry  into  lands,  tenements,  or  other  possessions,  except  where 
entry  is  given  by  law,  or  shall  make  any  such  entry  by  force  ; 
or  if  any-  person  shall  willfully  and  without  force,  hold  over 
any  lands,  tenements  or  other  possessions,  after  the  determina- 
tion of  the  time  for  which  such  lands,  tenements  or  posses- 
sions were  let  to  him,  or  to  the  person  under  whom  he  claims, 
after  demand  made  in  writing  for  possession  thereof,  by  the 
person  entitled  to  such  possession,  such  person  shall  be  ad- 
judged guilty  of  a  forcible  entry  and  detainer,  or  of  a  forcible 
detainer,  as  the  case  may  be,  within  the  intent  and  meaning  of 
this  act."  (R.  L.  313  ;  Gale's  Stat.  313.) 

From  this  section  it  will  be  perceived  that  there  is,  first,  a 
wrongful  or  illegal  entry,  as  contradistinguished  from  a  forci- 
ble or  violent  one  ;  secondly,  a  forcible  one  by  means  of  actual 
violence ;  and  thirdly,  that  of  a  wrongful  holding  over  of  a 
tenant. 

This  case  may  then  be  arranged  to  the  first  class  contem- 
plated by  the  statute  ;  and  the  instructions  of  the  Court  were 
directly  applicable  to  it,  and  properly  given. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

429 


410  VANDALIA. 


Butts  v.  Huntley. 


A.   H.   D.   BUTTS,    appellant,  v.    JOSEPH    HUNTLEY, 

appellee. 


CONTRACTS— RESCISSION. — The  law  is  well  settled  that  where  there  is  a 
written  contract  to  perform  a  particular  piece  of  work,  and  the  workman 
performs  a  part  of  the  work,  and  is  prevented  from  finishing  it  by  the  other 
party,  that  he  may  treat  the  contract  as  rescinded,  and  recover  the  value  of 
his  labor  in  an  action  of  assumpsit. 

JURISDICTION. — A  justice  of  the  peace  has  jurisdiction  in  such  case. 

THIS  cause  was  tried  at  tlie  September  term,  1836,  of  the 

Adams  Circuit  Court,  before  the  Hon.  Richard  M.   Young. 

Judgment  was  rendered  for  the  appellee  for  $64.62 

[*-ill]     and  costs.     *On   the   trial   in  the   Court  below,  the 

following  bill  of  exceptions  was  taken: 

"Be  it  remembered  that  on  the  trial  of  the  above  cause,  the 
plaintiff  called  Huntley,  as  a  witness,  who  after  being  duly 
sworn,  stated  that  some  time  in  March,  1836,  the  plaintiff  was 
employed  as  a  millwright  by  the  defendant,  to  build  for  the 
defendant  a  saw-mill — that  the  plaintiff  employed  one  other 
hand  and  witness  to  assist  him,  and  that  the  three  worked  upon 
the  timbers  of  the  defendant's  mill,  about  twelve  days,  and  in 
this  time  performed  nearly  all  the  work  that  could  be  per- 
formed upon  the  timbers  until  the  mill  irons  were  furnished. 
The  timbers  were  not  entirely  finished,  but  the  principal  part 
of  the  work  had  been  done  upon  them  ;  and  they  might  be  re- 
garded as  in  a  state  of  readiness  for  the  mill  irons,  and  for  being 
placed  in  the  mill  when  that  should  be  raised.  Plaintiff  then 
remained  at  defendant's,  till  the  time  at  which  the  mill  was  to 
have  been  completed,  and  the  defendant  not  having  furnished 
the  irons  for  the  mill,  the  plaintiff,  and  the  hands  he  had  to 
assist  him,  left  the  defendant's  employment,  and  never  re- 
turned to  complete  the  work.  The  witness  further  stated,  that 
all  the  work  which  was  done  by  the  plaintiff  for  the  defendant, 
was  done  under  and  by  virtue  of  a  written  agreement  between 
plaintiff  and  defendant.  They  at  one  time  had  to  quit  work 
for  want  of  some  of  the  necessary  irons.  They  went  home  and 
remained  a  week,  and  returned  to  defendant's,  to  proceed  with 
the  work,  but  defendant  had  not  yet  procured  all  the  neces- 
sary irons,  and  after  waiting  several  days  at  defendant's,  they 

CITED  :  Rescission  of  contract,  how  manifested.  1  Gilm.  100.  Recovery  in 
anxumjHtit,  4  Gilin.  328.  Right  of  party  upon  failure  of  performance.  5 
Gilm.  300. 

130 


DECEMBEK  TEEM,  1837.  411 

Butts  v.  Huntley. 

left  there  on  the  21st  day  of  April,  1836,  and  did  not  again 
return.  The  defendant  had  not  yet  had  his  mill-dam  built, 
nor  had  he  furnished  any  head  of  water  with  which  to  run  the 
saw.  They  had  done  all  that  they  could  conveniently  do,  for 
want  of  materials  to  be  furnished  by  defendant,  and  in  doing 
what  they  did  they  had  worked  to  a  disadvantage  for  want 
of  said  materials.  About  two  thirds  of  said  work  was  done, 
and  plaintiff  could  have  finished  it  in  the  time  stipulated,  if  he 
had  not  been  prevented  by  default  of  defendant. 

Greenhill  Tucker  was  then  called,  and  being  sworn,  stated 
that  he  had  been  employed  by  the  plaintiff  to  assist  him  in  doing 
the  wood  work  of  a  saw-mill  for  the  defendant,  and  that  he 
worked  with  the  plaintiff  on  the  timbers  of  said  mill,  about 
twelve  days  ;  that  in  that  time  they  had  done  nearly  all  the 
work  that  could  be  done  upon  the  timbers,  till  the  irons  were 
furnished,  and  they  might  be  considered  as  prepared  for  the 
reception  of  the  irons.  Plaintiff  remained  at  defendant's  until 
the  day  on  which  the  mill  was  to  have  been  completed ;  and 
as  the  irons  for  the  mill  were  not  furnished,  the  plaint- 
iff left,  and  did  not  afterward  return  to  *finish  the  [*412] 
work.  The  witness  further  stated,  that  all  the  work 
which  was  done  on  and  about  the  mill  of  the  defendant,  by  the 
plaintiff,  was  performed  under  and  by  virtue  of  an  agreement 
in  writing  entered  into  between  the  plaintiff  and  defendant. 

The  plaintiff  then  produced  the  written  agreement  spoken 
of  by  the  witnesses,  and  gave  the  same  in  evidence,  which 
said  agreement  is  in  the  words  and  figures  following,  to  wit : 

'Article  of  agreement  made  and  concluded  this  18th  day  of 
March,  in  the  year  of  our  Lord  1836,  between  A.  H.  D.  Butts 
of  Adams  county,  and  State  of  Illinois,  of  the  one  part,  and 
Joseph  Huntley,  of  Schuyler  county,  and  State  aforesaid,  of 
the  other  part,  WITNESSETH,  That  the  said  Joseph  Huntley 
agrees  to  do  all  the  millwright  work  to  a  saw-mill  for  A.  li. 
D.  Butts,  and  warrant  the  said  mill  to  cut  three  thousand  feet 
of  good,  merchantable  lumber,  one  inch  thick,  of  white  oak, 
black  walnut,  white  walnut,  and  hackberry,  equally  divided,  in 
twenty-four  hours,  for  the  sum  of  one  hundred  and  seventy- 
five  dollars  ;  and  all  the  said  mill  cuts  over  the  said  three 
thousand  feet,  in  the  said  twenty-four  hours,  the  eaid  A.  H.  D. 
Butts  is  to  pay  the  said  Huntley  ten  dollars  per  hundred  for 
a]l  Over — and'  the  said  Butts  is  to  furnish  a  six  feet  head  of 
water,  and  to  board  the  said  Iluntley,  and  do  all  the  drawing 
of  the  mill  timber,  and  the  said  Iluntley  is  to  use  two,  aud  not 
exceed  two  and  a  half  feet  from  the  bottom  of  the  wheel  to 
the  head  of  water.  The  ea'id  parties  both  agree  to  be  ready 
by  the  21st  day  of  April,  for  the  said  mill  to  go  into  opera- 

431 


412  YANDALIA. 


Butts  ».  Huntley. 


tion.  The  said  Iluntlcy  is  to  do  his  work  good  and  substan- 
tially, and  in  a  workmanlike  manner  ;  and  the  said  Butts  agrees 
that  the  time  of  filing  is  not  to  be  included  in  the  twenty-four 
hours. 

In  witness  our  hands  and  seals  the  above  date. 

A.  II.  D.  BUTTS.         [L.  s.] 

his 

JOSEPH  M  >  HUNTLEY.  [L.  s.] 
Witness,  mark. 

B.  G.  II.  TUCKER. 

This  being  all  the  evidence  offered  on  the  part  of  the  plaint- 
iff, the  defendant,  by  his  counsel,  moved  ill -3  Court  to  instruct 
the  jury  to  find  for  the  defendant  as  in  ca;e  of  nonsuit ;  but 
the  Court  overruled  the  motion,  and  refused  to  give  the  in- 
struction asked,  to  which  opinion  of  the  Court,  in  overruling 
said  motion,  and  refusing  to  give  said  instruction,  the  defend- 
ant by  his  counsel  excepts,  and  prays  the  Court  to  sign  and  seal 
this  his  bill  of  exceptions.  Exceptions  allowed." 

O.  H.  BROWNING  and  T.  FORD,  for  the  appellant,  contended 
that  as  the  terms  of  the  agreement  were   not  performed,  cov- 
enant, and  not  assumpsit,  was  the  proper  action,  and 
[*413]     that  the  justice  of  *the  peace  had  no  jurisdiction.     1 
Selw.  IS".  P.  64  and  note  ;  2  Starkie,  new  Ed.  55  et  seq. 

A.  WILLIAMS,  L.  DAVIS  and  F.  FORMAN,  for  the  appellee, 
relied  on  the  following  authorities:  12  Johns.  275;  15  Johns. 
224 ;  13  Johns.  53  ;  7  Johns.  132  and  cases  there  cited  ;  10 
Johns.  36  ;  5  Johns.  87  ;  Wendell's  Dig.  44  ;  2  Stark.  Ev.  70,  and 
cases  there  cited  ;  Chit.  Cont.  87  ;  2  Com.  Cont.  84  and  85  ;  1 
Chit.  Plead.  118,  note  1,  as  to  valid  contracts. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  assum/psit  commenced  originally  be- 
fore a  justice  of  the  peace  by  Huntley  against  Butts  for  work 
and  labor.  On  the  trial  of  the  cause  in  the  Circuit  Court  it 
appeared  from  the  testimony  that  the  parties  entered  into  a 
written  agreement,  under  seal,  that  Huntley  should  do  the 
millwright  work  to  a  saw-mill  by  the  21st  of  April,  1836,  and 
that  Butts  should  fu  ni  -h  the  materials.  It  was  further  proved 
that  Huntley  and  two  hands  worked  at  the  mill  for  twelve 
days  each,  and  would  have  completed  the  mill  by  the  day  stip- 
ulated, but  that  Butts  did  not  furnish  the  mill  irons  and  other 
materials,  and  so  prevented  Huntley  from  finishing  the  mill. 
The  action  was  brought  to  recover  the  value  of  the  work  done. 
After  the  testimony  of  the  plaintiff  below  was  concluded,  the 

432 


DECEMBER  TERM,  1837.  413 

Lawrence  et  al.  v.  The  People. 

defendant  moved  the  Court  to  instruct  the  jury  to  find  for  the 
defendant  as  in  case  of  nonsuit,  which  instruction  the  Court 
below  refused  to  give.  This  refusal  of  the  Court  is  assigned 
for  error.  It  was  contended  on  the  argument  that  as  some 
work  was  done  under  the  written  contract,  that  covenant  and 
not  assumpsit  was  the  proper  form  of  action.  This  position 
would  have  been  correct  had  Huntley  sought  to  recover  the 
full  sum  stipulated  to  be  paid  upon  the  completion  of  the  mill ; 
but  by  bringing  an  action  of  assumpsit  the  plaintiff  could  only 
recover  the  value  of  the  work  done.  The  law  is  well  settled 
that  where  a  written  contract  exists  to  perform  a  particular 
piece  of  work,  and  the  workman  performs  part,  and  is  pre- 
vented from  finishing  it  by  the  other  party,  he  may  treat  the 
contract  as  rescinded  and  recover  the  value  of  his  labor.  The 
Circuit  Court,  consequently,  decided  correctly  in  overruling 
the  motion  to  instruct  the  jury  as  in  case  of  nonsuit. 
The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


*WILLTAM  LAWRENCE  and  JOHN  DONOVON,      [*414] 
plaintiffs  in  error,  v.  THE  PEOPLE  OF  THE 
STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Cook. 

DEFECTIVE  VERDICT— PRACTICE.— The  Circuit  Court  may  set  aside  a  de- 
fective verdict  and  award  a  venire  de  novo  in  a  criminal  case,  where  the  facts 
found  are  so  defective  that  no  judgment  can  be  rendered  upon  such  verdict. 

THIS  was  an  indictment  for  larceny  against  the  defendants 
below,  who  appeared  and  pleaded  not  guilty  to  the  indict- 
ment and  went  to  trial.  The  jury  returned  the  following  ver- 
dict: 

"  Guilty  of  feloniously  stealing,  taking  and  carrying  away 
one  blue  coat  of  the  value  of  ten  dollars,  of  the  personal  goods 
and  chattels  of  one  John  Holbrook,  one  cap  of  the  value  of 
two  dollars,  of  the  personal  goods  and  chattels  of  one  John 
Holbrook,  and  seven  pairs  of  "pants,  of  the  value  of  thirty-five 
dollars,  of  the  goods  of  one  John  Holbrook,  in  manner  and 
form  as  charged  in  the  indictment.  Not  guilty  as  otherwise 
charged  in  the  indictment." 

The  defendants  moved  the  Court  for  a  new  trial,  but  after 
argument  had  and  before  any  decision  the  motion  was  with- 
drawn, and  a  motion  made  in  arrest  of  judgment.  The  Court 
VOL.  1-2?  488 


414  YANDALIA. 


Lawrence  et  al.  v .  The  People. 


overruled  said  motion  and  ordered  the  verdict  to  be  set  aside,  and 
a  venire  facias  de  now  to  be  awarded.  A  new  trial  was  then 
had,  a  verdict  of  guilty  rendered  by  the  jury,  and  the  ages  of 
the  defendants  found  to  be  under  eighteen  years.  The  de- 
fendants again  moved  the  Court  in  arrest  of  judgment,  which 
motion  was  overruled,  and  the  Court  pronounced  judgment 
upon  the  last  verdict. 

The  cause  was  tried  at  the  May  term,  1836,  of  the  Cook 
Circuit  Court,  before  the  Hon.  Thomas  Ford. 

WILLIAM  STUART,  for  the  plaintiffs  in  error,  contended : 
That  as  the  h'rst  verdict — inasmuch  as  it  did  not  lind  the  age 
of  the  defendants  to  be  under  eighteen  years,  by  reason 
whereof  no  judgment  could  be  nor  was  pronounced — was  in- 
sufficient and  defective,  the  first  motion  in  arrest  of  judgment 
should  have  been  sustained  by  the  Court. 

That  the  Court  erred  in  granting  a  new  trial — for  no  new 
trial  can  be  granted  in  cases  of  felony  or  treason,  and  cited 
R  L.  Grim.  Code,  §  158 ;  2  Black.  Com.  167 ;  6  Term  K.  638; 
13  East,  416,  cited  by  Chitty  in  1  Grim.  Law,  657 ;  Const,  of 
Ills.  Art.  8,  §  11. 

JAMES  GRANT,  State's  Attorney,  for  the  defendants  in  error 

[*415]  *SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
The  only  question  presented  in  this  case,  is,  on  the 
power  of  the  Circuit  Court  to  set  aside  a  defective  verdict,  on 
which  no  judgment  could  be  rendered,  and  to  award  a  venire 
de  novo.  The  right  to  exercise  this  power  can  not  be  ques- 
tioned. It  has  been  exercised  and  practiced  on  in  numerous 
criminal  cases,  and  is  undoubted.  If  the  verdict  does  not 
sufficiently  ascertain  the  facts  of  the  case,  the  Court  may 
award  a  venire  facias  denovo;  also  where  the  facts  are  found 
so  defectively,  that  no  judgment  can  be  given.  (Stark.  Grim. 
Plead.  391-395  ;  Hazeil's  Case,  Leach,  406  ;  Cro.  Eliz.  112, 
150 ;  1  Salkeld,  47,  53:  People  v.  Olcutt,  2  Johns.;  Ld.Kaym. 
1521. 

The  judgment  of  the  Circuit  Court  is  affirmed. 

Judgment  affirmed. 

434 


DECEMBER  TERM,  1837.  415 

Pearsons  v.  Hamilton. 


HIEAM  PEAKSONS,  appellant,  v.  RICHARD  J.  HAMIL- 
TON, Commissioner  of  School  Lands  for  Cook  County, 
appellee. 

Appeal  from  Cook. 

SCHOOL  FUND — INTEREST — STATUTE. — The  statute  regulating  the  amount 
of  interest  which  a  borrower  of  the  school  fund  shall  be  subject  to  pay,  as  a 
penalty  for  not  paying  the  principal  and  interest  punctually,  when  due, 
does  not  authorize  a  judgment  for  interest  infuturo,  and  it  can  not  be  ren- 
dered at  common  law. 

REVERSAI^— WHERE  CAUSE  NOT  REMANDED. — Where,  upon  the  reversal 
in  part  of  the  judgment  of  the  Court  below,  final  judgment  can  be  rendered 
in  this  Court,  the  cause  will  not  be  remanded. 

SCIRE  FACIAS — DAMAGES — PENALTY. — Semble,  that  in  an  action  by  scire 
facias  to  foreclose  a  mortgage  to  the  School  Fund,  the  jury  may  assess  a 
penalty  of  twenty  per  cent,  upon  the  amount  of  principal  and  interest,  after 
the  mortgage  became  due,  although  there  is  no  averment  of  the  penalty  in 
the  scirefacias. 

THIS  was  a  suit  by  scire  facias  to  foreclose  a.  mortgage  ex- 
ecuted by  the  appellant  to  the  appellee,  for  money  borrowed 
of  the  School  Fund  of  Cook  county. 

The  scire  facias  contained  no  averment  in  relation  to  the 
rate  of  interest  due  on  the  note  secured  by  the  mortgage. 

The  cause  was  tried  at  the  May  term,  1837,  of  the  Cook 
Circuit  Court,  before  the  Hon.  John  Pearson  and  a  jury.  The 
jury  returned  the  following  verdict: 

"We,  the  jury,  find  for  the  plaintiff,  the  sum  of  four  thou- 
sand eight  hundred  dollars,  his  debt  in  the  said  mortgage  men- 
tioned, and  four  hundred  and  eighty  dollars  damages  for  the 
detention  of  the  same  for  twelve  months  at  ten  per  cent.,  and 
ten  hundred  and  sixty-four  dollars  and  seventy  cents,  the  pen- 
alty at  twenty  per  cent,  for  twelve  months  and  three 
days  detention  of  the  same,  ^making  together  the     [*416] 
debt  and  damages  the  sum  of  six  thousand  three  hun- 
dred and  forty-four  dollars  and  seventy  cents." 

Judgment  was  rendered  upon  this  verdict,  that  the  plaintiff 
have  and  recover  of  the  defendant  his  debt  and  damages  afore- 
said, "  with  twenty  per  centum  interest  per  annum  thereon, 
until  paid." 

Cn  the  trial  in  the  Court  below,  the  following  bill  of  ex- 
ceptions was  taken : 

"  Be  it  remembered  that  on  the  trial  of  the  above  entitled 

CITED:  Interest  on  judgments— Rate  of.  45  111.  179.  Authority  to  enter 
judgment  and  issue  execution.  3  Scam.  350. 


416  VANDALIA. 


Pearsons  t>.  Hamilton. 


cause,  the  said  defendant  by  his  counsel  moved  the  Court  to 
instruct  the  jury,  that  the  plaintiff  is  entitled  to  recover  no 
more  than  ten  per  cent,  interest  per  annum,  on  the  amount  of 
the  note  and  mortgage  given  in  evidence,  and  the  principal, 
the  note  and  mortgage  given  in  evidence  specifying  ten  per 
cent,  interest  only.  And  also  to  instruct  the  jury,  that  the 
plaintiff  can  only  recover  the  amount  of  principal  and  interest 
alleged  in  the  pleadings,  and  not  twenty  per  cent,  penalty  or 
interest  on  principal  and  interest — which  eaid  instructions  the 
Court  refused  to  give,  and  instructed  the  jury  that  if  they  be- 
lieved from  the  evidence,  that  the  defendant  executed  the 
mortgage  and  note  given  in  evidence,  and  failed  to  pay  the 
same  when  it  -became  due,  that  the  amount  of  principal  and 
interest  became  principal  from  the  time  the  mortgage  became 
due  and  payable,  and  the  jury  had  a  right  to  assess  a  penalty 
on  principal  and  interest  then  being  principal,  at  the  rate  of 
twenty  per  cent,  from  the  time  said  note  and  mortgage  be- 
came due,  on  said  principal.  To  which  instruction,  and  to  the 
refusal  to  give  the  instructions  above  prayed  for,  the  defend- 
ant by  his  counsel  on  the  trial  of  said  cause  excepted,  and 
prayed  the  Court  for  leave  to  file  this  his  bill  of  exceptions, 
which  is  done  in  open  Court. 

JOHN  PEAESON.         [L.  s.]" 

The  errors  assigned  are, 

"  1.  The  said  Circuit  Court  erred  in  ordering  said  judg- 
ment to  bear  twenty  per  cent,  interest  in  futuro. 

2.  The  Court  erred  iff  instructing  the  jury  that  the  amount 
of  principal  and  interest  on  the  mortgage,  became  principal 
after  it  became  due,  and  that  they  might  assess  a  penalty  of 
twenty  per  cent,  thereon." 

T.  FORD,  for  the  appellant. 

J.  YOUNG  SCAMMON,  for  the  appellee,  cited  E.  L.  486,  §  43 
(Gale's  Stat.  529);  K.  L.  376,  §  18  (Gale's  Stat.  393) ;  Acts 
of  1825,  27,  §  2 ;  as  to  averment.  Prince  v.  La/mh,  Breese, 
299. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
[*417]  *The  question  presented  for  the  consideration  of 
the  Court  in  this  case  is,  whether,  in  an  action  by  a 
commissioner  of  the  school  fund,  on  a  mortgage  given  by 
the  borrower  of  a  portion  of  the  fund,  judgment  can  be 
rendered  for  prospective  interest  on  the  amount  for  which 
judgment  is  rendered.  The  statute  regulating  the  amount  of 
interest  which  the  party  who  borrows  that  fund  shall  be  sub- 

,  136 


DECEMBER  TERM,  1837.  417 

Stacy  v.  Baker. 

ject  to  pay,  as  a  penalty  for  not  paying  the  principal  sum  and 
interest  punctually,  when  they  become  due,  does  not  authorize 
a  judgment  for  interest  prospectively  ;  and  it  can  not  be  ren- 
dered at  common  law.  The  original  contract  is  merged  in  the 
judgment ;  and  although  by  law  six  per  centum  is  allowed  for 
interest  on  such  judgment,  this  is  to  be  collected  under  the 
execution  on  such  judgment,  by  a  special  provision  of  law. 

So  much  of  the  judgment  as  gives  interest  on  the  amount  of 
the  judgment  at  the  rate  of  ''  twenty  per  cent,  until  paid"  be- 
ing clearly  erroneous,  is  reversed,  and  judgment  entered  in 
this  Court  for  the  amount  of  $6,344.70,  being  the  sum  for 
which  judgment  ought  to  have  been  rendered  in  the  Circuit 
Court.  The  appellant  to  recover  his  costs  in  that  Court. 

But  as  it  is  competent  for  this  Court  to  render  such  judg- 
ment as  the  Court  below  ought  to  have  rendered,  it  is  there- 
fore considered  and  ordered,  that  the  said  Richard  J.  Hamil- 
ton, Commissioner  of  School  Lands,  recover  against  the  said 
Hiram  Pearsons,  the  sum  of  six  thousand,  three  hundred  and 
forty-four  dollars  and  seventy  cents,  and  that  he  have  execu- 
tion thereof,  etc. 

Judgment  reversed  in  part,  and  final  judgment  rendered  in 
this  Court. 

Note.  See  case  of  Hamilton  v.  Wright  et  al.  decided  December  term, 
1839,  post. 


MATTHEW  STACY,  administrator  of  Samuel  Hitt,  de- 
ceased, appellant,  v.  KOBEET  E.  BAKER,  appellee. 

Appeal  from  Morgan. 

PLEADING — DEMURRER. — Where  there  is  a  general  demurrer  to  several 
pleas,  if  any  one  of  the  pleas  be  good,  the  demurrer  must  be  overruled. 

LEX  LOCI  CONTKACTUS. — No  principle  is  better  settled,  than  that  the  laws 
of  the  country  where  the  contract  is  made,  shall  govern  its  construction,  and 
determine  its  validity. 

Where  a  note  was  made  in  Kentucky,  the  laws  of  which  State  allow  the 
same  defense  to  be  made  against  a  note  in  the  hands  of  an  assignee,  whether 
assigned  before  or  after  it  becomes  due,  that  may  be  made  against  the  orig- 
inal holder  or  payee,  and  suit  was  brought  iipnn  said  note,  in  Illinois,  against 
the  administrator  of  the  luaker,  who  had  removed  to  this  Stale:  Held  that 
the  laws  of  Kentucky  at  the  time  of  the  making  and  assignment  of  the  note, 
should  be  the  rule  of  decision,  and  the  defendant  might  avail  himself  of  any 
defense  that  he  could  have  availed  himself  of,  if  the  suit  had  been  prosecuted 
in  Kentucky.  

CITED:  Incompetency  of  assignor  as  a  witness.  27111.237.  Conflict  of 
laws,  when  lex  loci  governs.  52  Id.  244;  78  Id.  560;  2  Bradw.  135.  Plead- 
ing. 108  III.  629. 


437 


418  YANDALIA. 


Stacy  r.  Baker. 


[*418]        *The  existing  laws  of  a  State,  at  the  time  of  the  making  and  as- 
signment of  a  promissory  note,  form  a  portion  of  the  contract,  and 
the  liability  of  the  maker  should  be  determined  under  them. 

WITNESSES — COMPETENCY. — The  admission  of  an  assignor  of  a  promis- 
sory note,  as  a  -witness,  to  prove  the  time  of  assignment,  is  contrary  to  the 
rules  of  evidence. 

THE  appellee  instituted  a  suit  in  the  Morgan  Circuit  Court 
against  the  appellant,  by  petition  cmd  summons,  on  the  follow- 
ing notes : 

"  On  or  before  the  first  day  of  September,  eighteen  hundred 
and  thirty-four,  we  promise  to  pay  "William  Miller,  Jr..  three 
hundred  dollars,  in  silver,  for  value  rec'd  this  13th  day  of 
Oct,  1826. 

SAMUEL  HITT, 
IRA  HITT 
Attest,  H.  PARKER." 

On  which  is  the  following  assignment : 

"I  assign  the  within  note,  for  value  received,  to  Robert 
E.  Baker,  this  14th  day  of  October,  1828. 

WILLIAM  MILLER,  Jr." 

"  On  or  before  the  first  day  of  September,  eighteen  hun- 
dred and  thirty-five,  we  promise  to  pay  William  Miller,  Jr., 
three  hundred  dollars,  in  silver,  for  value  rec'd,  this  13th  day 
of  Oct.,  1826. 

SAMUEL  HITT. 
IRA  HITT. 
Attest,  HENRY  PARKER." 

On  which  is  the  following  assignment: 

"  I  assign  the  within  note,  for  value  received,  to  Robert  E. 
Baker,  this  14th  day  of  October,  1828. 

WM.  MILLER,  Jr." 

The  defendant  pleaded  five  pleas,  to  wit :  1.  That  he  did 
not  detain  the  debt.  5.  Payment  by  his  intestate ;  and  the 
three  following  special  pleas  : 

2.  "And  for  further  plea  herein,  he  says,  actio.  non,  because 
lie  says  that  the  notes  sued  on  were  executed  in  Kentucky 
State,  in  part  consideration  of  the  sale  of  a  tract  of  land  and 
mill  thereon  situate,  in  the  State  of  Kentucky,  in  Bourbon 
county,  sold  by  William  Miller,  Jr.,  to  the  defendant ;  that  at 
the  time  of  the  sale  and  execution  of  said  notes,  William  Mil- 
ler, Sen.,  who  had  sold  said  property  to  said  William  Miller, 
Jr.,  had  a  lien  on  said  property,  as  vendor,  for  the  price  equal 
to  the  value  of  said  property,  and  that  since  the  execution  of 
paid  notes,  the  representative  of  said  William  Miller  has,  by  a 
decree  of  the  Scott  Circuit  Court,  having  acquired  jurisdiction 
by  a  change  of  venue  from  the  Bourbon  Circuit  Court,  both 

458 


DECEMBEE  TEEM,  1837.  418 

Stacy  v.  Baker. 

Courts  of  competent  jurisdiction,  enforced  said  lien  on  said 
mill  and  property,  by  a  decree  in  rem,  and  that  paid 
property  will  not  more  than  satisfy  said  lien;  *and     [*419] 
the  defendant  avers  that  said  William  Miller,  Jr.,  is 
not  solvent,  so  that  any  part  of  said  lien  could  be  collected 
out  of  his  estate ;  and  so  the  defendant  says  that  the  con- 
sideration of  said  notes  has  failed,  and  that  by  the  laws  of 
Kentucky  the  same  defense  is  permitted  against  assignee  as 
against  obligee  of  said  notes,  and  this  he  is  ready  to  verify, 
etc.     Wherefore  he  prays  judgment,  etc. 

BROWN  &  WALKER,  pd." 

3.  "  And  for  further  plea  in  this  case,  the  defendant  says 
actio.  non;  because  he  says  the  notes  sued  on  were  executed  in 
the  State  of  Kentucky,  in  part  consideration  of  the  sale  of  a 
tract  of  land  and  mill,  situate  in  the  county  of  Bourbon  and 
State  aforesaid.     He  also  avers  that  William  Miller,  Jr.,  at  the 
time  of  the  sale  of  said  property,  was   indebted  to   William 
Miller,  Sen.,  for  the  purchase  money  thereof,  he  having  bought 
the  same  of  William  Miller,  Sen.,  and  that  said  William,  Sen., 
held  a  lien  upon  said  property  for  said  purchase  money.     He 
avers  further,  that  a  decree  has  been  rendered  in  the  Circuit 
Court  of  Scott  county,  Kentucky,  a  court  of  competent  juris- 
diction, and  which  obtained  jurisdiction  by  a  change  of  venue 
from  the  Circuit  Court  of  Bourbon  county,  and  State  aforesaid, 
also  a  court  of  competent  jurisdiction,  enforcing  said  lien  by  a 
decree  in  rem,  and  that  said  property  is  not  more  than  suffi- 
cient to  satisfy  said  lien.     Wherefore  the  defendant  says  that 
the  consideration  for  which  said  notes  were  executed  has  wholly 
failed,  and  this  he  is  ready  to  verify.     Wherefore  he  prays 
judgment,  etc. 

BROWN  &  WALKER,  Attorneys,  pd." 

4.  "And  the  defendant  for  further  plea,  says  actio.  non,  be- 
cause he  says  that  the  notes  sued  on  were  executed  in  the  State  of 
Kentucky,  in  Bourbon  county ;  that  by  the  laws  of  Kentucky, 
in  force  at  the  time  said  notes  were  executed,  it  was  permitted 
a  defendant  to  plead,  as  a  valid  defense  to  any  action  on  such 
notes,  that  they  were  executed  without  any  consideration,  as  well 
when  the  notes  were  assigned  before,  as  after,  they  became  due 
— that  said  law  of  Kentucky  is  still  in  force,  and  that  said  notes 
were  assigned  in  the  State  of  Kentucky.     And  the  defendant 
avers  that  the  notes  sued  on  were  executed  without  any  con- 
sideration whatever,   and   this    he   is  ready   to  verify,  etc. 
Wherefore  ho  prays  judgment,  etc. 

BROWN,  W.  &  H.  pd." 

To  the  2d,  3d  and  4th  pleas,  the  plaintiff  demurred,  and  the 
demurrer  was  sustained  by  the  Court.     Issue  was  taken  on  the 

439 


419  YANDALIA. 


Stacv  *.  Baker. 


1st  and  5th  pleas,  and  a  trial  had.     On  the  trial,  the  follow- 
ing bill  of  exceptions  was  taken: 

"  Be  it  remembered,  that  on  the  trial  of  this  cause, 
[*420]  the  *pkintiff  called  a  witness  by  the  name  of  William 
Miller,  Jr.,  who,  on  examination  by  defendant's  coun- 
sel (he  having  been  sworn),  stated  that  he  was  the  assignor  of 
the  notes  sued  on,  and  in  case  the  action  was  decided  in  iavor  of 
defendant,  lie  was  bound,  as  assignor,  to  pay  the  plaintiff  the 
amount  of  the  notes  sued  on.  To  his  competency  the  defend- 
ant, by  his  counsel,  objected ;  but  the  Court  overruled  the  ob- 
jection, and  permitted  tho  witness  to  give  evidence  to  prove 
the  assignment  of  the  notes;  but  in  relation  to  no  other  fact, 
in  behalf  of  plaintiff,  to  which  opinion  and  decision  of  the 
Court  the  defendant,  by  his  attorney,  excepts,  and  prays  that 
this  his  bill  of  exceptions  may  be  signed,  sealed  and  enrolled, 
which  is  done  accordingly. 

S.  T.  LOGAN.  [L.  s.]" 

Judgment  was  rendered  for  the  plaintiff  in  the  Court  below, 
for  $600  debt,  and  $49.80  damages,  and  costs  of  suit ;  from 
which  the  defendant  appea^cl  to  this  Court. 

The  appellant  relied  upon  the  following  points: 
•'1.  That  Miller  was  an  incompetent  witness,  because  of  his 
actual  interest  as  assignor  of  the  notes  sued  on. 

2.  That  he  was  an  incompetent  witness,  because  of  his  sup- 
posed interest. 

3.  That  the  lex  loci  contractus  is  always  to  be  considered 
in  ascertaining  the  essence,  extent  and  obligation  of  a  contract, 
and  that  parties  contract  in  reference  thereto. 

4.  That  the  legal  obligation  of  a  contract  consists  in  the  ex- 
isting remedies  to  enforce  it. 

5.  That  the  sale  of  the  mill  and  the  execution  of  the  notes 
was  but  one  contract,  and  that  it  would  be  stripping  the  appel- 
lant of  his  legal  remedies  to  take  away  the  defense  set  up  in 
his  pleas,  and  consequently,  so  far  as  he  is  concerned,  destroy- 
ing the  obligation  of  the  contract.     If  the  money  was  paid,  it 
would  deprive  him  of  assumpsit  to  recover  it.     If  notes  given, 
of  a  bill  in  Chancery  to  have  them  canceled. 

6.  That  a  removal  from  Kentucky  to  Illinois  should  not  be 
held  to  vary  the  extent  of  the  contract,  and  hence  the  2d,  3d 
and  4th  pleas  are  good. 

7.  An  argument  drawn  from  inconvenience  is  strong  in  law, 
against  the  application  of  the  statute  of  Illinois,  in  relation  to 
the  assignment  of  promissory  notes,  to  cases  like  the  present. 
The  statute  does  not  suit  the  condition  of  our  agricultural  peo- 
ple— it  works  great  hardship,  when  the  honest  man,  who,  had 
he  remained  in  Kentucky,  would  have  been  solvent,  has  by  a 

440 


DECEMBEE  TEEM,  183T.  420 

Stacy  v.  Baker. 

removal  to  Illinois  so  far  changed  the  nature  of  his  contracts 
that  without  any  consent  on  his  part,  or  any  new  consideration 
to  him  accruing,  his  whole  estate  is  swept  from  him  by  an  en- 
forcement of  contracts,  which,  had  he  not  possessed 
sufficient   enterprise  to  *em'grate    to    Illinois,  could     [*421J 
never  have  been  enforced  aga.ust  him  in  Kentucky  ; 
because,  there,  after  the  failure  of  the  consideration,  they  had 
neither  moral  nor  legal  obligation.     Argumentum  ab  inconven- 
ient i  est  fortissimum  in  lege" 

Authorities  cited  for  the  appellant : 

To  1st  point.  Barnes  v.  Ball,  Mass.  73 ;  Rice  v.  Stevens, 
3  do.  225  ;  note  to  Am.  ed.  N.  Peake,  212  ;  Sturnits  etal.  v. 
Carey,  1  Dall.  270  ;  note  to  Am.  ed.  K.  Peake,  214  ;  Esp.  K 
P.  705  ;  Brown  v.  Vance's  E^rs,  4  Non.  418 ;  Jackson  v. 
Hallenback,  2  Johns.  394  ;  /Swift  v.  Dean,  6  do.  525 ;  Munf . 
HOO  ;  Herbert  et  al.  v.  Herbert,  Breese,  281 :  Am.  ed.  N.  Peake, 
215. 

To  2d  point.  Sentney  v.  Overton,  4  Bibb,  445 ;  2  J.  J. 
Mar-hall.  391,  freeman  v.  Tuekett\  2  Bac.  Abr.,  Am.  ed.,  and 
authorities  there  cited,  592  ;  Richardson's  Etfr  v.  Hunt,  2 
Mnnf.  148;  Trustees  of  Lansinlnirg  v.  Willard,  3  Johns. 
428  ;  Plumb  v.  Whiting,  4  Mass.  518. 

To  3d  point     Pearsall  \.  Dwiglit  et  al.,  2  Mass.  84 ;  Pow- 
ers 
K 
238, 

To  4th  point    'Blair  v.    Williams,  4  Littell,  34 ;  Lapsley 
v.  Brashears,  4  Littell,  47;  3  Blac.  Com.   23;  1  Bac.   Abr., 
titfe  Actions  in  General — letter  B. 

To  5th  point.  2  Blackf.  365  ;  2  Bibb ;  Story  on  Conflict 
of  Laws,  501-503  ;  1  Black.  221. 

To  6th  point.  2  Blackf.  316,  365  ;  Chit  Cont.  21 ;  Latest 
Am.  ed.  Chitty  on  Bills,  86. 

CYKUS  WALKER  and  WILLIAM  BROWN,  for  the  appellant 

WILLIAM  THOMAS,  for  the  appellee  ;  cited  Baker  v.  Ilitfs 
Admr's,  8  Peters  j  Bank  U.  S.  v.  Donally,  8  Peters,  3 

SMITH,  Justice,  delivered  the  opinion  of  the  Court:  (1) 
The  sustaining  the  demurrer  to  the  pleas  of  the  defendant, 

and  admitting  the  assignor  of  the  notes  as  a  witness,  are  now 

ass^-ned  for  error. 

On  the  first  point,  as  the  demurrer  was  a  general  < 

~7l )  The  facts  having  been  already  given,  the  statement  of  the  ca.se,  in  the 
opinion  of  the  Court,  is  omitted. 

•  441 


421  YANDALIA. 


Stacy  v.  Baker. 


pleas  of  the  defendant,  if  either  of  them  are  good,  it  follows 
that  the  judgment  on  the  demurrer  was  erroneous.  What- 
ever may  be  the  opinion  of  the  Court  on  the  second  and  third 
pleas,  they  can  entertain  no  doubt  of  the  validity  of  the  fourth. 
It  alleges  an  entire  want  of  consideration  for  the  notes,  and 
avers  that  they  were  made  and  assigned  in  Kentucky,  and  fur- 
ther avers  what  the  laws  of  Kentucky  were  at  the  time 
[*422]  of  making  and  assigning  of  *the  notes,  in  regard  to  the 
defense  set  up  under  this  plea.  This  Court  has  de- 
termined in  the  case  of  Bradshaw  v.  Newman,  "  That  no  prin- 
ciple is  better  settled  than  that  the  laws  of  the  country  where 
the  contract  is  made,  shall  govern  its  construction  and  deter- 
mine its  validity,"  (Breese,  94)  and  this  decision  is  but  in  ac- 
cordance with  the  acknowledged  rule  of  decision  of  the  courts 
in  the  United  States. 

We  are  equally  well  satisfied  that  the  fourth  plea,  setting 
up  a  defense  under  the  laws  of  Kentucky,  which  was  clearly 
available  there,  should  be  permitted  in  our  courts ;  and  that  a 
change  of  the  residence  of  the  defendant  has  not  changed  his 
rights,  or  those  of  his  representative,  under  a  contract  made 
under  and  with  reference  to  those  laws.  The  existing  laws  of 
Kentucky,  at  the  time  of  making  and  assigning  the  notes,  form 
a  portion  of  the  contract  when  made,  and  the  liability  of  the 
maker  should  be  determined  under  them.  To  this  both  par- 
ties assented  in  making  and  receiving  the  notes. 

The  admission  of  the  assignor  as  a  witness  was  contrary  to 
the  rules  of  evidence,  and  we  can  not  see  how  he  could  be 
sworn  to  testify  to  a  single  fact,  and  not  be  an  admissible  wit- 
ness for  any  other  which  could  be  legal  evidence  in  the  cause. 
His  interest  is  apparent ;  and  he  seems  to  have  admitted  the 
conclusion  of  law  a?  to  his  liability  himself. 

The  Court  having  decided  the  demurrer  erroneously  as  to 
the  fourth  plea,  and  improperly  admitted  the  assignor  as  a 
witness,  the  judgment  is  reversed,  the  cause  remanded,  with 
instructions  to  issue  a  venire  de  novo,  and  proceed  in  the  cause. 

Judgment  reversed. 

Note.     See  Bayley  on  Bills,  586-590,  notes. 

The  indorser  of  a  note  is  a  competent  witness  to  prove  whether  he  in- 
dorsed the  note  previously  or  subsequently  to  its  becoming  due.  Baker  v. 
Arnold,  1  Caines,  258;  Baird  v.  Cochran,  4  Serg.  &  Rawle,  397;  Smith  ». 
Lovett,  11  Pick.  417. 

In  an  action  by  the  indorsee  against  the  acceptor  of  a  bill,  the  drawer  or 
indorser  is  a  competent  witness,  for  the  plaintiff,  to  prove  his  own  indorse- 
ment. Byles  on  Bills,  '237. 

Note.  See  4  Cowen,  510,  which  contains  a  very  able  note  by  the  Reporter, 
upon  the  subject  of  the  lex  loci,  and  the  lexfori. 

In  an  action  by  the  indorsee  against  the  indorser  of  a  foreign  bill  of  ex- 
change, the  defendant  is  liable  for  damages  according  to  the  law  of  the 
place  where  the  bill  was  indorsed.  The  indorsement  is  a  new  and  substan- 

442 


DECEMBER  TEEM,  1837.  422 

Campbell  et  al.  v.  State  Bank  of  Illinois. 

tive  contract.     Slacum  v.  Pomery,  6  Cranch,  221;  2  Peters'  Cond.  R.  351. 

It  is  a  well  settled  principle  that  a  statute  of  limitations  is  the  law  of  the 
forum,  and  operates  upon  all  who  submit  themselves  to  its  jurisdiction. 
M'Cluney  v.  Silliman,  2  Peters,  270. 

The  general  rule  of  law  is  well  settled,  that  the  law  of  the  place  where 
the  contract  is  made,  and  not  where  the  action  is  brought,  is  to  govern  in 
enforcing  and  expounding  the  contract,  unless  the  parties  have  a  view  to  its 
being  executed  elsewhere;  in  which  case  it  is  to  be  governed  according  "to 
the  law  of  the  place  where  it  is  to  be  executed.  Cox  et  al.  v.  The  Unite  d 
States,  6  Peters,  172. 

The  general  principle  adopted  by  civilized  nations,  is,  that  the 
nature,  validity,  *and  interpretation  of  contracts,  are  to  be  governed     f*423J 
by  the  laws  of  the  country  where  the  contracts  are  made,  or  are  to 
be  performed.     But  the  remedies  are  to  be  governed  by  the  laws  of  the 
country  where  the  suit  is  brought;  or,  as  it  is  compendiously  expressed,  by 
the  lexfori.    No  one  will  pretend,  that  because  an  action  of  covenant  will 
lie  in  Kentucky,  on  an  unsealed  contract  made  in  that  State,  therefore  a 
like  action  will  lie  in  another  State,  where  covenant  can  be  brought  only  on 
a  contract  under. seal.     Bank  of  the  United  States  v.  Donally,  8  Peters  361. 

The  law  of  the  country  where  a  contract  is  made,  is  the  law  of  the 
contract,  wherever  performance  is  demanded;  and  the  same  law  which  cre- 
ates the  change,  will  be  regarded,  if  it  operate  a  discharge  of  .the  contract. 
Green  v.  Sarmiento,  Peters'  C.  C.  R.  74. 

The  laws  of  a  foreign  country  where  a  contract  is  made,  will  be  regarded 
by  foreign  tribunals  as  to  the  obligation  of  the  contract,  and  its  discharge; 
but  as  to  the  mere  forms  of  proceeding,  the  laws  of  the  country  to  whose  tri- 
bunals appeal  is  made,  must  govern.  Webster  v.  Massey,  2  Wash.  C.  C. 
R.  157. 


JAMES  B.  CAMPBELL  and  KICHARD  J.  HAMILTON,  im- 
pleaded  with  John  Tillson,  Jr.,  plaintiffs  in  error,  v. 
THE  PRESIDENT,  DIRECTORS  AND  COMPANY  OF  THE 
STATE  BANK  OF  ILLINOIS,  defendants  in  error. 

Error  to  Fayette. 

ATTOKNEY — PRESUMPTION  AS  TO  AUTHORITY. — Where  a  supersedes  bond 
purported  to  be  executed  by  a  person  as  attorney  in  fact,  in  the  name  of  his 
principal,  and  the  authority  of  the  attorney  did  not  appear:  Held  that  the 
Court  would  presume  that  the  attorney  had  authority  to  execute  the  bond, 
unless  his  authority  was  questioned  by  affidavit. 

THE  defendants  in  error  moved  the  Court  to  quash  the  su- 
persedeas  in  this  case,  for  the  following  reasons,  to  wit :  "  That 
the  order  making  the  writ  of  errorasupereedeas  required  that 
James  B.  Campbell  and  others  should  enter  into  bond,  etc.  It 
appears  that  the  bond  was  not  entered  into  by  James  B.  Camp- 
bell, but  purports  to  have  been  entered  into  in  the  name  of 
Campbell,  by  his  attorney,  etc.,  etc.,  and  the  authority  of  the 
attorney  does  not  appear."  

CITED:  Authority  of  attorney— How  questioned.     11  111.  17. 

443 


±23  YANDALIA. 


La  Fayette  Bank  of  Cincinnati  v.  Stone. 


The  bond  purported  to  be  executed  in  the  presence  of  George 
Mauierre,  a  subscribing  witness,  and  was  signed  as  follows : 

"JAMES  B.  CAMPBELL,  [L.  s.] 

By  SOLOMON  WILLS,  his  att'y  in  fact. 
RICHARD  J.  HAMILTON,  [L.  s.] 

LUCIEN  PEYTON,  [L.  s.]" 

There  was  no  power  of  attorney  on  file. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
It  is  the  duty  of  the  clerk  of  this  Court  to  see  that  the  bonds 
he  accepts  are  duly  executed.     The  Court  will  pre- 
[*42i]     sums  that  he  *has  discharged  his  duty,  until  the  con- 
trary appears.     If  the  defendants  in  error  can  show 
by  affidavit  that  the  person  who  executed  the  bond  in  the 
name,  and  as  the  attorney,  of  Campbell,  was  not  authorized  to 
do  so,  the  Court  will  then  inquire  into  his  authority ;  not 
otherwise.. 

Motion  overruled. 

Note.  The  following  order  was  made  at  the  December  term,  1840,  of  the 
Supreme  Court. 

OUDEHED:  That  whenever  a  bond  is  executed  by  an  attorney  in  fact  the 
clerk  shall  require  the  original  power  of  attorney  to  be  filed  in  his  office,  un- 
less it  shall  appear  that  the  power  of  attorney  contains  other  powers  than 
the  mere  power  to  execute  the  bond  in  question,  in  which  case  the  original 
power  of  attorney  shall  be  presentedjto  the  clerk,  and  a  true  copy  thereof  filed, 
certified  by  the  clerk  to  be  a  true  copy  of  the  original. 


THE  PRESIDENT,  DIRECTORS  AND  COMPANY  OF  THE  LA 
FAYETTE  BANK  OF  CINCINNATI,  plaintiffs  in  error,  v. 
CALEB  STONE,  impleaded  with  John  B.  Glover, 
defendant  in  error. 

Error  to  the  Municipal  Court  of  the  City  of  Alton. 

ACTS  OP  STATE  LEGISLATURES — AUTHENTICATION  OP. — The  act  of  Con- 
gress prescribing  the  mode  of  authenticating  the  acts  of  the  several  legisla- 
tures, declares  that  such  acts  shall  be  authenticated  by  having  the  seal  of 
their  respective  States  affixed  thereto-.  An  act  certified  by  the  Secretary  of 
State,  to  which  is  appended  a  certificate  of  the  Governor,  with  the  seal  of 
State  affixed,  certifying  to  the  official  character  of  the  person  signing  himself 
as  Secretary,  and  that  full  faith  and  credit  are  to  be  given  to  his  official  acts, 
is  not  a  compliance  with  the  act  of  Congress. 

THIS  cause  was  heard  at  the  October  term,  1837,  of  the  Mu- 
nicipal Court  of  the  City  of  Alton,  before  the  Hon.  William 
Martin. 

The  defendant  pleaded  in  abatement  that  there  was  not  at 

444 


DECEMBEE  TEEM,  183T.  424 

La  Fayette  Bank  of  Cincinnati  v.  Stone. 

the  time  of  the  commencement  of  said  suit  "  any  such  person 
called  the  President,  Directors  and  Company  of  the  La  Fay- 
ette Bank  of  Cincinnati."  Issue  was  taken  on  this  plea. 

The  plaintiffs  to  support  their  action  offered  in  evidence  a 
paper  purporting  to  be  the  act  of  the  legislature  of  the  State  of 
Ohio,  incorporating  the  plaintiffs,  which  was  certified  as  follows: 
?'  Secretary  of  State's  Office,  Columbus,    ) 
Ohio,  March  18,  1834.  \ 

I  do  hereby  certify  that  the  foregoing  act  is  a  correct  copy 
of  the  original  roll  thereof,  remaining  on  tile  in  this  office. 

B.  HINKSON,  Secretary  of  State." 
*  "  United  States  of  America.          \      [*425] 
The  State  of  Ohio,  Executive  Office,  f 

I,  Robert  Lucas,  Governor  and  Commander  in  Chief  of  the 
State  of  Ohio,  do  hereby  certify  that  B.  Hinkson,  by  whom 
the  act  hereto  attached  appears  to  have  been  certified,  now  is, 
and  was  at  the  date  of  said  certificate,  the  acting  Secretary  o| 
State,  in  and  for  the  said  State  of  Ohio,  having  been  duly 
elected  and  duly  commissioned  as  such ;  and  that  his  official 
acts  are  entitled  to  full  faith  and  credit  as  well  in  courts  of 
justice  as  thereout. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name 
and  caused  the  Great  Seal  of  the  State  of  Ohio  to  be  affixed,  at 
Columbus,  this  nineteenth  day  of  March,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-four. 

EGBERT  LUOAS." 

«  (  Great  Seal ) 
I    of  State,    f 

A.  COWLES,  for  the  plaintiffs  in  error,  cited  U.  S.  Const.  Art. 
4,  §  1;  2  U.  S.  Laws  102,  Ch.  38;  3  U.  S.  Laws  621,  Ch.  409, 
Duane  and  Bioren's  Ed.;  2  Peters'  Cond.  E.  32,  note;  4  Dallas 
412;  3  Peters'  Cond.  E.  395,  note;  11  Wheaton  392,  U.  S.  v. 
Amadey. 

U.  F.  LINDEE,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  on  the  ease  brought  to  recover  the 
amount  of  a  bill  of  exchange  made  by  the  defendant  and 
indorsed  to  the  plaintiffs.  On  the  trial  of  the  cause,  the 
plaintiffs  offered  in  evidence,  to  prove  the  existence  of  the 
corporation,  a  paper  purporting  to  be  a  copy  of  their  charter, 
to  which  was  appended— first,  a  certificate  by  B.  Ilmkson,  Sec- 
retary of  State,  declaring  that  the  foregoing  act  is  a  correct 
copv  of  the  original  roll  thereof,  remaining  on  file  in  the  office 


415 


425  VANDALIA. 


La  Fayette  Bank  of  Cincinnati  v.  Stone. 


of  the  Secretary  of  State,  at  Columbus,  in  Ohio ;  secondly,  a 
certificate  of  Robert  Lucas,  Governor  of  the  State  of  Ohio, 
declaring  that  B.  Hinkson,  by  whom  the  act  thereto  attached 
appears  to  have  been  certified,  was  at  the  date  of  the  certifi- 
cate, the  acting  Secretary  of  State  in  and  for  the  State  of  Ohio, 
and  that  his  official  acts  are  entitled  to  full  faith  and  credit ;  to 
which  latter  certificate  is  attached  the  Great  Seal  of  the  State 
of  Ohio. 

To  the  introduction  of  this  paper  thus  certified,  as  evidence, 
the  defendant  objected,  and  the  Court  sustained  the  objection. 

The  plaintiffs  now  assign  the  exclusion  of  this  paper  from 
the  jury  for  error. 

In  considering  the  correctness  of  this  decision,  it  is  proper  to 
look  at  the  act  of  Congress  directing  in  what  manner  the  acts 
of  the  legislatures  of  the  several  States  shall  be  authenticated. 
This  act  has  declared  that  these  acts  shall  be  authenti- 
[*426]  cated  by  having  *the  seal  of  their  respective  States 
affixed  thereto.  The  paper  offered  in  evidence  is  not 
so  authenticated.  The  seal  of  the  State,  it  appears  by  this 
certificate  of  the  Governor,  is  affixed  for  the  purpose  only  of 
adding  verity  to  the  fact  declared  in  his  certificate,  that  B. 
Hinkson  is  Secretary  of  the  State  of  Ohio,  and  that  full  faith 
and  credit  are  due  to  his  official  acts ;  not  that  the  facts  de- 
clared in  the  Secretary's  certificate  are  true.  This  is  not  a 
compliance  with  the  pro  visions  of  the  act  of  Congress,  which 
manifestly  intended  that  the  seal  should  be  affixed,  for  the 
purpose  of  authenticating  the  act,  and  that  the  transcript 
thereof  was  an  exact  copy  of  the  law  passed  by  the  State  legis- 
lature. However  much  it  may  be  regretted  that  objections, 
technical  in  their  nature,  are  to  prevail  in  cases  like  the  present, 
the  Court  can  not  depart  from  the  plain  and  obvious  provisions 
of  the  law.  It  has  no  discretion  to  dispense  with  the  forms 
prescribed ;  and  parties  who  offer  testimony,  the  manner  of 
authenticating  which  is  thus  provided,  must  conform  to  the 
mandates  of  the  law.  The  Court  below  properly  rejected  the 
paper  offered. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed,. 

The  plaintiffs  in  error  filed  the  following  petition  for  a  re- 
hearing. 

To  the  Supreme  Court  of  the  State  of  Illinois,  December 

term,  1837. 

The  President.  Directors  &  Co.  of  the  La  Fayette ) 
Bank  of  Cincinnati  v.  Caleb  Stone,  impleaded  with  >   In  error. 
John  B.  Glover.  ) 

The  undersigned  of  counsel  for  the  plaintiffs  in  error,  re- 

446 


DECEMBER  TEEM,  1837.  425 

La  Fayette  Bank  of  Cincinnati  v.  Stone. 

speetfully  request  for  the  plaintiffs  a  rehearing  of  the  afore- 
said cause,  and  a  revision  of  the  record  and  authorities  herein 
referred  to. 

They  entertain  a  strong  confidence,  upon  a  careful  revision 
of  the  whole  case,  that  the  judgment  will  be  reversed ;  and 
they  present  for  the  consideration  of  the  Court  the  following 
grounds  and  authorities. 

1.  That  the  evidence  presented  does  in  fact  show  a  compli- 
ance with  the  law  of  the  United  States,  and  the  decisions  of 
the  Courts  thereupon.     1  Laws  U.  S.  102;  Gordon's  Digest, 
142,  note  a ;  2  Peters'  Cond.  E.  30,  in  notes ;  3  Idem.  305, 
notes;  Amadey  v.  U.  S.,  6  Peters'  Cond.  E.;  1  Blackford,  159. 

2.  That  the  appending  the  Great  Seal  is  not  invalidated  by 
the  cumulative  certificates,  and  the  verification  of  additional 
facts,  besides  the  truth  of  the  record. 

3.  That  one  of  the  facts  certified  by  the  Secretary,  is,  that 
the  exemplification  is  a  correct  copy  of  the  roll  on  tile  in  his 
office. 

4.  That  by  the  Constitution  of  Ohio,  the  Governor  is 

the  keeper  *of  the  Great  Seal  and  his  affixing  of  it  to     [*42T] 
the  certificate,  is  intended  and  does  in  fact  verify  all 
that  is  certified. 

5.  That  the  evidence  was  admissible  by  the  rules  of  the  com- 
mon law. 

6.  That  the  judgment  below  is  erroneous  for  matter  ap- 
parent on  its  face,  besides  the  rejection  of  the  testimony.     1 
C  bitty,  405. 

For  these  and  other  reasons  that  might  be  urged  we  pray  a 
rehearing. 

ALFRED  COWLES. 
S.  T.  LOGAN. 

NOTE  BY  SCAMMON.  The  Constitution  of  the  United  State  provides  that, 
"Full  faith  and  credit  shall  be  given  in  each  State,  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  State.  And  the  Congress 
may,  by  general  laws,  prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof."  Art.  4,  §  1. 
The  acts  of  Congress  upon  this  subject  provide  as  follows: 
"  The  acts  of  the  legislatures  of  the  several  States  shall  be  authenticated  by 
having  the  seal  of  their  respective  States  affixed  thereto.  The  records  and 
judicial  proceedings  of  the  courts  of  any  State  shall  be  proved  or  ad- 
mitted in  any  other  court  wilhin  the  United  States,  by  the  attestation  of 
the  clerk,  and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together  with 
a  certificate  of  the  judge,  chief  justice,  or  presiding  magistrate,  as  the  case 
may  be,  that  the  said  attestation  is  in  due  form.  And  such  records  and 
judicial  proceedings,  so  authenticated,  shall  have  such  faith  and  credit  given 
to  them  in  every  court  within  the  United  States,  as  they  have  by  law  or 
u=aj?e  in  the  courts  of  the  State  from  whence  the  said  records  are,  or  shall  be 
taken.  (Act  May  26,  1790.)  1  Story's  U.  S.  Laws  £ 

All  records  and  exemplifications  of  office  books,  which  may  be  kept  in  anv 
public  office  of  any  State,  not  appertaining  to  a  court,  shall  be  proved  or  ad- 


447 


427  VANDALIA. 


Bloo  ».  The  State  Bank  of  Illinois. 


united  into  any  other  court  or  office  in  any  other  State,  by  the  attestation 
of  the  keeper  of  such  records  or  books,  and  the  seal  of  his  office  thereto  an- 
nexed, if  there  be  a  seal,  together  with  a  certificate  of  the  presiding  justice 
of  the  court  of  the  county  or  district,  as  the  case  may  be,  in  which  such 
office  is,  or  may  be  kept;  or  of  the  governor,  the  secretary  of  State,  the 
chancellor  or  keeper  of  the  great  seal  of  the  State,  that  such  attestation  is  in 
due  form,  and  by  the  proper  officer;  and  such  certificate,  if  given  by  the 
presiding  justice  of  a  court,  shall  be  farther  authenticated  by  the  clerk  or 
prothonotary  of  said  court,  who  shall  certify,  under  his  hand  and  the  seal  of 
his  office,  that  the  presiding  justice  is  duly  commissioned  and  qualified;  or 
if  the  certificate  be  given  by  the  governor,  the  secretary  of  State,  the  chan- 
cellor or  keeper  of  the  great  seal,  it  shall  be  under  the  great  seal  of  the  State 
in  which  the  certificate  is  made.  And  the  records  and  exemplifications,  so 
authenticated,  shall  have  such  faith  and  credit  given  to  them  in  every  court 
and  office  within  the  United  States,  as  they  have  by  law  or  usage  in  the 
courts  or  offices  of  the  State  from  whence  the  same  are,  or  shall  be  taken. 
(Act  March  27,  1804.) 

All  the  provisions  of  the  acts  of  1790  and  1804,  shall  apply,  as  well  to  the 
public  acts,  records,  office  books,  judicial  proceedings,  courts  and  offices  of 
the  respective  territories  of  the  United  States,  and  countries  subject  to  the 
jurisdiction  of  the  United  States,  as  to  the  public  acts,  records,  office  books, 
judicial  proceedings,  courts  and  offices,  of  the  several  States.  (Act  March  27, 
1804.)  2  Story's  U.  S.  Laws,  947. 

"  The  act  of  Congress  above  referred  to  does  not  require  the  attestation 
of  any  public  officer,  in  order  to  authenticate  copies  of  the  legislative  acts 
of  the  several  States;  but  the  seal  of  the  State  affixed  by  an  officer  having 
the  custody  thereof,  to  a  copy  of  the  law  sought  to  be  proved,  will  be  con- 
clusive evidence  of  the  existence  of  such  law ;  no  other  formality  is  necessary , 
and  in  the  absence  of  all  evidence  to  the  contrary,  it  must  be  presumed  that 
the  seal  was  annexed  by  an  officer  having  competent  authority  to  the  act. 
(United  States  v.  Amadey,  11  Wheat.  Rep.  392.  United  States  v.  Johns,  4 
Dall.  Rep.  412;  S.  C.,  1  Wash.  C.  C.  Rep.  363;  Henthorn  v.  Doe, 
[*428]  1  Blackf.  Rep.  157;  State  v.  Carr,  5  N.  Hamp.  Rep.  367;  *War- 
ner  v.  The  Commonwealth,  2  Virg.  Cas.  95.)"  3  Phillips  Ev., 
Co  wen  and  Hill's  notes,  1141. 


ALBERT  G.  SLOO,  plaintiff  in  error,  v.  THE  PRESIDENT, 
DIRECTORS  AND  COMPANY  OF  THE  STATE  BANK  OF 
ILLINOIS,  defendants  in  error. 

Error  to  St.  Clair. 

FORM  OP  RECORD. — The  record  of  a  cause  should  present  the  proceedings 
in  the  order  of  time  in  which  they  transpired. 

ERROR  TO  DECISION  ON  MOTION. — A  writ  of  error  will  lie  to  the  decision 
of  a  Circuit  Court  upon  a  motion  to  set  aside  a  judgment,  and  quash  an  ex- 
ecution, issued  thereon. 

JOINDER — WAIVER. — Semble,  That  the  defendants  in  error,  by  joining  to 
error ,  waive  all  objection  to  the  assignment  of  errors,  if  the  rigid  rules  of 
pleading  be  adhered  to;  the  joinder  being  only  considered  as  a  demurrer  to 

CITED:  Vacation  of  judgment.  1  Gilm.  444;  2  Gilm.  635;  16  Bradw. 
518;  may  be  set  aside  on  motion.  21  111.  138.  Correction  of  errors  in  fact. 
67  111.  538.  Partner,  power  as  against  co-partner.  17  111.  217;  12  Bradw. 
530.  Jurisdiction  ot  Supreme  Court.  3  Scam.  403. 

448 


DECEMBER  TEEM,  1837.  428 

Sloo  v.  The  State  Bank  of  Illinois. 

the  assignment  of  errors,  in  cases  where  the  errors  are  not  well  assigned, 
and  contradict  the  record. 

FINAL  DECISION— APPEAL.— Whenever  a  decision  takes  place  in  any  of 
the  Circuit  or  inferior  Courts  of  record  in  this  State,  which  is  final,  and  of 
which  a  record  can  be  made,  and  which  decide  the  right  of  property,  or  per- 
sonal liberty,  complete  jurisdiction  is  conferred  on  the  Supreme  Court  to 
hear  and  determine  the  same.* 

CONFESSION  OP  JUDGMENT— PAKTNEK.— One  partner  can  not  confess  a 
judgment  in  the  name  of  his  co-partner.15 

SAME.— A  power  of  attorney  to  confess  a  judgment  is  usually  under  seal ; 
but  if  it  be  made  without  a  seal,  still  one  partner  can  not  by  it  bind  his 
co-partner.0 

Quere,  Whether  a  judgment  confessed  for  a  larger  amount  than  is  actually 
due,  can  be  valid. 

Quere,  Whether  one  partner  can,  after  the  rendition  of  a  judgment  against 
both  upon  a  power  of  attorney  .to  confess  a  judgment,  executed  by  one  only 
in  the  name  of  the  firm,  without  the  knowledge  of  the  other,  ratify  and 
make  valid  such  judgment. 

THE  bill  of  exceptions  taken  on  the  trial  of  this  cause  in  the 
Court  below,  at  the  August  term,  1837,  before  the  Hon.  Sid- 
ney Breese,  contains  a  full  statement  of  the  case,  and  omitting 
the  declaration  and  the   notice  to  the  defendants  in  error  of 
the  motion  of  the  plaintiff  in  error,  to  set  aside  the  judgment 
rendered  at  the  May  special  term,  is  as  follows : 
"Albert  G.  Sloo  &  Horatio  G.  McClin- )  Circuit  Court  of  St. 
toe  v.    The  President,  Directors  and  >  Clair  county,   Au- 
Co.  of  the  State  Bank  of  Illinois.        )  gust  term,  1837. 

a  Appeal  and  error — Wliat  amounts  to  final  judgment  or  decree  for  pur- 
poses of.  See  McKinstry  ».  Pennoyer,  ante  319,  note. 

b  Partnership — Confession  of  judgment  by  individual  member. 

A  partner  can  not  bind,  his  co-partners  by  a  confession  of  judgment  with- 
out their  consent.  In  addition  to  the  above  case  of  Sloo  r.  State  Bank,  see 
Crane  v.  French,  1  Wend.  311;  York's  Appeal,  36  Pa,  St.  458;  Bitzer  v. 
Shunk,  1  Watts  &  S.  340  ;  Barlow  v.  Reno,  1  Blackf.  252  ;  Shed  v.  Bank,  32 
Vt.  709;  Christy  v.  Sherman,  10  Iowa,  535;  Edwards  v.  Pitzer,  12  Iowa, 
607;  North  v.  Muclge,  13  Iowa,  496;  Remington  v.  Cummings,  5  Wis.  138; 
Everson  v.  Gehrman,  1  Abb.  Pr.  167;  St.  John  v.  Holmes,  20  Wend.  609; 
Lambert  v.  Converse,  22  How.  Pr.  265.  But,  see,  Leahey  v.  Kingon,  13 
Abb.  Pr.  192;  22  How.  Pr.  209;  Pardee  v.  Haynes,  10  Wend.  630;  Ross  v. 
Howell,  84  Pa.  St.  129. 

A  confession  of  judgment  by  a  partner  after  dissolution  binds  only  him- 
self. Morgan  r.  Richardson,  16  Mo.  409;  Herrick  v.  Conant,  4  La.  Ann.  276; 
Mitchell  r.  Rich,  1  Ala.  2'28.  See,  generally,  Swell's  Lind.  Part.,  474. 

c  Power  of  partner  to  bind  firm  by  instruments  under  seal. 

The  pmcer  of  a  partner  to  bind  his  co-partners  by  instruments  under 
seal  is  not  implied  from  the  partnership  relation.  In  addition  to  the  above 
case  of  Sloo  v.  State  Bank,  see  Ruffnerr.  McConnel,  17  111.  212;  Wilcox  r. 
Dodge,  12  Bradw.  517;  Clements  v.  Brush,  3  Johns.  Cas.  180;  Mackay  r. 
Bloodgood,  9  Johns.  285;  Skinner  v.  Dayton,  19  Johns.  513;  Cadey  r.  Shep- 
ard,  11  Pick.  400;  VanDeusen  v.  Blum,  18  Pick.  229;  Snyder  v.  May,  19 
Pa.  St.  235;  McNausrhton  v.  Partridge,  11  Ohio,  223;  McDonald  r.  Eg- 
gleston,  26  Vt.  154;  Baldwin  v.  Richardson,  33  Tex.  16;  Doe  r.  Tapper,  12 
Miss.  261;  Morse  v.  Bellows,  7  N.  H.  550;  United  States  t>.  Astley,  3  Wash. 
508;  Lambden  v.  Sharp,  9  Humph.  224;  County  v.  Gates,  26  Mo.  315;  Hou- 
VOL.  1-29  449 


428  VANDALIA. 


Sloo  r.  The  Shite  Bank  of  Illinois. 


Be  it  remembered  that  at  this  present  term  of  the  Court, 
August,  1837,  the  above  named  Albert  G.  Sloo  moved  the 
Court,  by  his  counsel,  to  set  aside  the  judgment  as  to  him  ren- 
dered at  the  last  May  term  of  this  Court,  against  him  and  the 
said  McClintoc,  for  the  sum  of  $125,000,  or  to  enter  an  ord'er 
that  no  execution  issue  on  said  judgment  against  him,  the  said 
A.  G.  Sloo,  for  the  following  reasons : 

'  1.  It  appears  from  the  record  in  the  cause,  that 
[*429]     no  process  *was  issued  and  served  upon  the  said  Sloo ; 
neither  does  it  appear  that  he  was  brought  into  Court 
by  any  other  means. 

2.  It  appears  that  the  judgment  was  rendered  upon  a  plea 
of  confession  filed  by  Alfred  Cowles,  Esq.,  as  attorney  for  the 
defendants,  acting  under  a  power  or  warrant  of  attorney,  exe- 
cuted by  the  said  McClintoc  only,  as  a  partner  in  business  with 
the  said  Sloo,  and  not  executed  or  in  any  way  assented  to  by 
the  said  Sloo. 

kinson  v.  Eliot,  62  Pa.  St.  393;  Sutlive  v.  Jones,  61  Ga.  676;  Harrison  r. 
Jackson,  7  T.  R.  207;  Thomason  v.  Frere,  10  East,  418;  M^Kee  v.  Bank,  7 
Ohio,  175. 

Co-partners,  with  their  assent  or  subsequent  ratification,  may  be  bound  by 
an  instrument  under  seal,  executed  by  one  of  their  number.  Peine  v.  Web- 
er, 47  111.  41,  45,  and  authorities  cited;  Wilcox  v.  Dodge,  12  Bradw.  517, 
526,  and  authorities  cited.  See,  also,  the  authorities  above  cited.  Gibson  r. 
Warden,  81  U.  S.  (14  Wall.)  244;  Grady  «.  Robinson,  28  Ala.  289;  Hoi- 
brook  r.  Chamberlain,  116  Mass.  161:  Russell  v.  Annable,  109  Mass.  74; 
McDonald  r.  Eggleston,  26  Vt.  154:  Mclntyre  v.  Park,  11  Gray.  106. 

The  ratification  of  an  unauthorized  sealed  instrument  in  the  name  of  the 
firm,  executed  by  one  of  the  partners,  may  be  by  parol.  Wilson  v.  Hunter, 
14  Wis.  683;  Smith  v.  Kerr,  3  N.  Y.  150;  Johns  v.  Battin.  30  Pa.  St.  84; 
Gwinn  v.  Rooker,  24  Mo.  291;  Skinner  v.  Dayton,  19  Johns.  513;  Lowrey  v. 
Drew,  18  Tex.  786;  Pike  r.  Bacon.  20  Me.  280;  Fox  v.  Norton,  9  Mich.  207; 
Grady  »;.  Robinson,  28  Ala.  289;  Drumwright  v.  Philpot,  16  Ga.  424;  Haynes 
r.  Seachrist,  13  Iowa,  455;  Ely  v.  Hair,  16  B.  Mon.  230. 

The  instrument  is  sometimes  sustained,  the  seal  being  treated  as  surplus- 
age, in  cases  where  a  seal  is  unnecessary, to  the  validity  of  the  contract,  and 
where  it  falls  within  the  scope  of  the  partnership  business.  Sweetzer  v. 
Mead,  5  Mich.  107;  1  Am.  Lead.  Cas.  5  ed.  450,  544;  Woodruff  v.  King,  47 
Wis.  267;  Gibson  tr.  Warden,  81  U.  S.  (14  Wall.)  244;  Schmertz  v.  Shrieve, 
62  Pa.  St.  457. 

A  sealed  instrument  executed  by  one  of  the  partners  in  the  presence  of 
the  others,  binds  all,  as  it  amounts  in  law  to  an  execution  by  all  the  partners. 
Bull  r.  Demsterville,  4  T.  R.  313;  Burn  v.  Burn,  3  Ves.  573;  Mackay  v. 
Bloodgood,  9  Johns.  285;  Halsey  r.  Whitney,  4  Mason,  206. 

One  partner  may  bind  his  co-partners  by  a  release,  under  seal,  of  a  debt 
due  the  firm.  Swan  v.  Steele,  7  East,  211;  Perry  v.  Jackson,  4  T.  R.  519; 
Bulkley  r.  Dayton.  14  Johns.  387;  Morse  v.  Bellows,  7  N.  H.  567;  McBride 
r.  Hogan,  1  Wend.  326. 

The  tendency  of  American  courts  is  to  restrict  the  rule  that  a  partner  can 
not  bind  his  co-partners  by  instruments  under  seal. 

For  a  general  discussion  of  the  subject,  see  Ewell's  Lindley  on  Part.  278, 
and  notes. 

aa 


DECEMBER  TERM,  1837.  429 

Sloo  v.  The  State  Bank  of  Illinois. 

3.  Tlie  power  or  warrant  of  attorney  is  entirely  insufficient 
to  authorize  the  confession  of  the  judgment. 

4.  The  Court  had  110  jurisdiction  of  the  case. 

5.  The  judgment  ought  to  be  set  aside  as  to  the  said  Sloo, 
for  reasons  disclosed  in  the  affidavits  of  the  defendants. 

HENRY  STAKE, 
J.  ROBINSON, 
JAMES  SEMPLE.' 

The  judgment  referred  to  is  in  the  following  words  and 
figures,  to  wit: 

'  Be  it  remembered,  that  on  Thursday,  the  fourth  day  of 
May,  A.  D.  eighteen  hundred  and  thirty-seven,  came  the 
President,  Directors  and  Company  of  the  State  Bank  of  Illi- 
nois, by  their  attorney,  J.  M.  Krum,  and  filed  in  open  Court 
their  warrant  of  attorney,  of  A.  G.  Sloo  and  Horatio  G.  Mc- 
Clintoc,  in  the  words  and  figues  following,  to  wit : 
;  To  any  Attorney  of  any  Court  of  Record  in  and  for  the  State 
of  Illinois : 

You  are  hereby  authorized  to  appear  before  Albert  G.  Sloo 
and  Horatio  G.  McClintoc,  (trading  and  doing  business  under 
the  firm  and  style  of  A.  G.  Sloo  &  Co.,  in  Alton,)  in  any 
such  Court,  at  the  suit  of  the  President,  Directors  and  Com- 
pany of  the  State  Bank  of  Illinois,  and  to  receive  a  declara- 
tion for  us  in  such  suit,  in  an  action  of  trespass  on  the  case  on 
promises,  and  thereupon  to  suffer  judgment  to  pass  against  us 
in  such  action  for  the  sum  of  one  hundred  and  twenty-five 
thousand  dollars,  by  confession,  nil  dicit,  or  non  sum  infar- 
matus,  and  to  release  all  errors  of  such  judgment,  and  this 
shall  be  your  sufficient  authority. 

Given  under  our  hands  at  Alton,  this  20th  day  of  April,  A. 
D.  1837.  A.  G.  SLOO  &  Co. 

In  presence  of  J.  M.  Krum. 
State  of  Illinois,          \ 

Madison  county,       f 

J.  M.  Krum,  being  duly  sworn,  says  that  he  is  the  subscrib- 
ing witness  to  the  foregoing  instrument  and  warrant  of  attorney, 
that  the  same  was  subscribed  in  his  presence  by  Horatio  G.  Mc- 
Clintoc, for  the  firm  of  A.  G.  Sloo  <fc  Co.,  and  this  depo- 
nent further  *says  that  the  said  firm  of  A.G.  Sloo  &  Co.  is  [*430] 
composed  of  Albert  G.  Sloo  and  Horatio  G.  McClintoc, 
and  that  they  are  trading  arid  doing  business  as  such  firm  in  Al- 
ton, Madison  county,  and  State  of  Illinois.  And  this  affiant  says, 
that  the  said  above  warrant  of  attorney  was  signed,  executed 
and  delivered  to  the  said  President,  Directors  and  Company  of 
the  State  Bank  of  Illinois,  on  the  2<>th  day  of  April,  1837,  the 
day  of  the  date  of  said  instrument,  and  that  at  the  time  of 

451 


430  VANDALIA. 


Sloo  r.  The  State  Bank  of  Illinois. 


pinning  and  delivering  the  same,   the  said  McClintoc,  for  the 


A.  G.  Sloo  &  Co.,  acknowledged  that  he  signed  the  same 
freely  and  voluntarily,  for  the  uses  and  purposes  therein  ex- 
pressed. J.  M.  KEUM. 

Subscribed  and  sworn  before  me,  this  3d  day 

of  May,  1837.     In  testimony  whereof  I 

have  hereto   set  my   hand   and  Notarial 

Seal,  this  3d  day  of  May,  1837. 

[L.  s.]  JOHN  H.  SPAER, 

Notary  Public,  M.  C. 

At  which  day,  to  wit,  on  the  said  fourth  day  of  May,  A.  D. 
eighteen  hundred  and  thirty-seven,  came  the  said  plaintiffs  by 
their  attorney,  and  pray  that  judgment  be  entered  up  on  said 
warrant,  and  which  is  entered  in  the  words  following,  to  wit  : 
President,  Directors  and  Company  of  the  "1  On  warrant  of  atty. 

State   Bank   of  Illinois    v.  Albert    G.  |     Narr  —  Cognowt. 

Sloo  and  Horatio   G.   McClintoc,  trad-  |-  Case. 

ing  and  doing  business  under  the  name,  Damages. 

style  and  firm  of  A.  G.  Sloo"&  Co.       J       $200,000.00. 

This  day  came  the  plaintiffs  by  their  attorney,  and  file  their 
declaration  herein,  and  the  said  defendants,  by  Alfred  Cowles, 
Esq.,  their  attorney,  duly  constituted  by  warrant  of  attorney, 
come  and  file  their  confession  and  cognovit,  and  by  their  attor- 
ney aforesaid,  confess  judgment  to  the  said  plaintiffs  for  the 
sum  of  one  hundred  and  twenty-five  thousand  dollars.  It  is 
therefore  considered  by  the  Court  that  the  said  plaintiffs  re- 
cover from  the  said  defendants  the  said  sum  of  one  hundred 
and  twenty-five  thousand  dollars,  so  as  aforesaid  confessed, 
and  that  they  have  execution  thereof,  etc.  The  said  Sloo,  in 
support  of  his  motion,  introduced  the  following  affidavits  : 
'Albert  G.  Sloo  and  Horatio  G.  McCHntoc,  \  Judgment,  May 

advs.  The  President,    Directors  and  Co.  v       term,  1837, 

of  the  State  Bank  of  Illinois.  )      for  §125,000. 

I,  Albert  G.  Sloo,  one  of  the  above  defendants,  being  sworn, 
depose  and  say,  that  I  was  not  in  the  State  of  Illinois  when 
the  warrant  of  attorney  was  executed,  (the  20th 
[*-i31]  April,  1837.)  under  *which  the  judgment  was  con- 
fessed, as  I  understand,  nor  did  I  know  an3rthing  of 
its  execution  till  some  days  after,  nor  did  I  suspect  that  it  was 
contemplated.  The  first  information  I  had  of  it  was  com- 
municated to  me  by  Mr.  McClintoc,  when  I  objected  to  it.  1 
immediately  went  to  my  attorneys,  Messrs.  Martin  &  Mur- 
dock.  and  inquired  of  them  if  it  was  binding  upon  me,  or  to 
that  effect.  They  told  me  it  was  not  binding  upon  me.  I 
further  depose  and  say,  that  when  I  learned  from  Mr.  McClintoc 
that  he  had  given  the  power  of  attorney,  he  stated  to  me  that 

452 


DECEMBER  TERM,  1837.  431 

Sloo  r.  The  State  Bank  of  Illinois. 

\vlien  it  was  brought  to  him  to  sign,  the  cashier  of  the  branch 
of  the  bank  at  Alton  and  the  attorney  of  the  bank  inquired 
of  him  if  he  had  any  authority  to  sign  for  me,  when  he  told 
them  he  had  not.  I  never  assented  to  the  execution  of  the 
power  of  attorney,  or  the  confession  of  the  judgment  under  it. 

I  further  depose  and  say,  that  when  the  judgment  was  ren- 
dered, there  was  not  then  due  and  owing  to  the  bank,  by  the 
tirm  of  A.  G.  Sloo  &  Co.,  more  than  from  forty  to  fifty  thou- 
sand dollars,  the  precise  sum  I  can  not  now  state;  that  the 
judgment  extended  to  and  covered  the  future  liability  of  A. 
G.  Sloo  &  Co.,  and  was  for  certain  drafts  or  orders  made  by 
them  on  a  mercantile  house  in  New  Orleans,  and  by  that  house 
accepted,  but  which  were  thereafter  to  become  due,  and  which 
A.  G.  Sloo  &  Co.  would  not  be  liable  to  pay  to  the  bank,  ex- 
cept upon  the  default  of  the  acceptor;  that  these  drafts  formed 
at  least  seventy-five  thousand  dollars  of  the  amount  of  the 
judgment.  A.  G.  SLOO. 

Sworn  to  and  subscribed  in  open  Court, 

23d  August,  1837.  JOHN  HAY,  Clerk. 

I,  Horatio  G.  McClmtoe,  being  sworn,  depose  and  say ,_  that 
when  I  executed  the  power  of  attorney  under  which  the  judg- 
ment was  confessed,  the  said  Sloo  was  not  present  ;  that  he 
was  not  at  the  time  in  the  State  of  Illinois,  nor  did  he  return 
for  several  days  after  ;  that  I  first  informed  him  that  I  had 
executed  it,  when  he  expressed  a  great  surprise  that  I  had 
done  it,  and  observed  that  I  had  no  right  to  do  it,  or  something 
to  that  effect.  1  further  say,  that  before  I  executed  the  power 
of  attorney,  I  was  inquired  of  both  by  the  cashier  and  the  at- 
torney for  the  bank,  (Mr.  Krum),  whether  I  had  any  authority 
to  extend  it  for  Mr.  Sloo;  I  replied  I  had  not.  Mr.  Sloo  be- 
in<r  absent  in  New  Orleans,  the  cashier  of  the  bank  (for  its 
safety  no  doubt)  seemed  desirous  of  securing  to  the  bank  Mr. 
Sloo's  property  against  other  creditors,  and  with  a  view  to  ac- 
complish this  purpose,  and  under  an  impression  that  an  ar- 
rangement would  be  made  between  the  bank  and  Mr.  Sloo,  on 
his  return,  I  executed  the  power  of  attorney ;  I  did  not  believe 
the  bank  would  use  it,  nor  should  I  have  signed  it,  if 
I  had  been  under  the  impression  that  the  bank  *  would  [*432] 
have  used  it,  as  has  been  done.  This  impression  was 
derived  from  my  conversations  with  the  cashier.  "I  acted  in 
full  persuasion  that  an  arrangement  would  be  made  with  the 
bank  when  Mr.  Sloo  returned,  and  such  I  believe  was  the 
impression  of  the  cashior,  and  I  felt  that  the  object  was  rather 
to  secure  the  property  of  Mr.  Sloo  from  his  other  creditors,in 
the  meantime,  than  anything  else.  I  further  depose  and  say, 
that  when  the  power  of  attorney  was  given,  and  the  judgment 


453 


YANDALIA. 


Sloo  r.  The  State  Bank  of  Illinois. 


confessed,  not  more  than  from  forty  to  fifty  thousand  dollars 
was  then,  due  to  the  bank  by  the  lirm  of  A.  G.  Sloo  &  Co.,  and 
that  more  than  one  half  of  the  judgment  was  for  money  there- 
after to  become  due,  and  extended  to  future  liabilities,  or  to 
paper,  on  which  the  said  A.  G.  Sloo  &Co.  were  liable,  but  not 
then  due. 

H.  G.  McCjLINTOC. 

Sworn  to  and  subscribed  in  open  Court, 

23d  August,  1837.  JOHN  HAY,  Clerk.' 

And  now  on  Thursday,  the  fourth  day  of  St.  Clair  Circuit 
Court,  in  the  year  aforesaid,  the  said  motion  came  on  to  be 
heard  ;  the  said  bank  appeared  by  their  counsel,  and  filed  the 
following  affidavits,  to  wit : 

'  J.  M.  Krum,  being  duly  sworn,  says,  that  on  or  about  the 
20th  day  of  April,  A.  D.  1837,  Horatio  G.  McClintoc  and  Al- 
bert G.  Sloo  were  partners  in  trade  under  the  name  and  firm 
of  A.  G.  Sloo  &  Co.,  at  Alton,  county  and  State  aforesaid  ; 
that  said  A.  G.  Sloo  &  Co.  were  at  that  time  indebted  to  the 
President,  Directors  and  Company  of  the  State  Bank  of  Illi- 
nois, as  this  affiant  w^as  then  informed  by  said  Horatio  G.  Mc- 
Clintoc, in  the  sum  of  one  hundred  and  twenty-five  thousand 
dollars  ;  which  amount  of  indebtedness  was  admitted  by  said 
McClintoc  in  my  presence,  and  in  the  presence  of  James  H. 
Lea,  Esq.,  agent  of  said  bank.  On  the  said  20th  day  of  A]  ril, 
aforesaid,  it  was  proposed  in  my  presence,  by  said  James  H. 
Lea,  and  in  the  presence  of  said  McClintoc,  that  said  A.  G. 
Sloo  &  Co.  should  confess  a  judgment  in  favor  of  said  bank 
for  the  said  sum  of  one  hundred  and  twenty-five  thousand 
dollars,  which  proposition  was  agreed  to  by  said  McClintoc  ; 
and  this  affiant  was  requested  by  said  Lea  and  said  McClintuc 
to  draw  and  prepare  a  warrant  of  attorney,  for  the  purpose  of 
confessing  said  judgment ;  which  was  done,  and  the  said  Mc- 
Clintoc signed  the  name  of  the  said  firm  of  A.  G.  Sloo  &  Co. 
to  the  same.  And  this  affiant  says  that  at  the  time  of  signing 
said  wan-ant  of  attorney,  this  affiant  explained  the  contents, 
force  and  effect  of  signing  the  same,  and  said  McClintoc,  after 
such  explanation,  signed  the  same  with  a  full  knowledge  of 
the  contents,  force  and  effect  of  the  same,  as  he  admitted  to 
ine  at  the  time  of  signing  the  same ;  which  said  warrant 
of  attorney  was  the  only  one  ever  signed  by  said 
[*433]  *McClintoc  in  favor  of  said  bank,  to  the  knowledge 
or  information  of  this  affiant.  And  this  affiant  fur- 
ther says,  that  soon  after  the  said  warrant  of  attorney  was 
signed  and  delivered  as  aforesaid,  on  or  about  the  third  day  of 
May  last  past,  said  Albert  G.  Sloo,  one  of  said  firm  of  A.  G. 
Sloo  &  Co.,  at  Alton,  inquired  of  this  affiant  whether  I  had 


DECEMBER  TERM,  1837.  433 

Sloo  v.  The  State  Bank  of  Illinois. 

the  said  warrant  of  attorney  in  my  possession,  to  which  I  re- 
plied, it  was  in  the  possession  of  James  EL  Lea,  Esq.,  afore- 
said. The  said  S^oo  then  inquired  the  date  of  the  said  war- 
rant of  attorney,  and  its  contents,  force  and  effect,  which  in- 
quiry this  affiant  answered  by  explaining  to  said  Sloo,  as  I 
had  previously  explained  to  McClintoc,  the  contents,  force 
and  effect  of  the  same,  after  which  said  Sloo  replied  "  It  is  all 
right,  I  suppose"  During  the  same  conversation  with  said 
Sloo,  relative  to  said  warrant  of  attorney,  he  remarked  that 
he  had  never  authorized  his  partner,  McClintoc,  to  confess 
such  a  judgment,  but  said  he  supposed  it  would  make  no  dif- 
ference, as  he  intended  to  effect  some  amicable  adjustment 
with  the  bank  relative  to  his  indebtedness — or  words  to  that 
effect ;  the  whole  conversation  I  can  not  now  recall  to  mind 
verbatim  ;  the  above  is  in  substance  what  passed  between  us. 
And  this  affiant  further  says  that  the  above  conversation  was 
had  before  the  said  judgment  on  the  warrant  of  attorney  was 
perfected— but  was  during  the  same  week  that  judgment  was 
entered  up.  During  said  conversation  above  mentioned,  the 
said  A.  G.  Sloo  did  not  dissent  to  the  signing  of  said  warrant 
of  attorney,  in  any  other  way  or  by  any  other  words  than  the 
foregoing.  From  the  foregoing  conversation,  the  impression 
was  left  on  my  mind  at  the  time,  that  he  (Sloo)  ratified  the  act  of 
McClintoc  in  signing  said  warrant  of  attorney.  About  two  days 
after  said  first  conversation,  (and  after  said  judgment  by  confes- 
sion had  been  entered  up)  said  Sloo  met  this  affiant  at  his  office 
in  Alton,  and  in  conversation  said  he  had  never  authorized  said 
McClintoc  to  sign  a  confession  of  judgment  for  him,  and  that 
he  should  not  assent  to  it.  This  affiant  further  says  that  said 
Sloo  first  received  information  of  the  signing  of  said  warrant 
of  attorney  from  some  person  other  than  this  affiant,  for  the 
reason  that  he  (Sloo)  introduced  the  subject  in  conversation, 
at  the  time  first  above  named ;  and  that  he  never,  to  my 
knowledge,  gave  notice  to  the  said  bank,  that  he  did  not  ratify 
the  act  of  McClintoc,  until  after  judgment  had  been  entered 
up  on  'said  warrant  of  attorney.  The  foregoing  contains  in 
substance  the  whole  of  the  conversations  referred  to  above,  to 
the  best  of  my  knowledge  and  belief. 

J.  M.  KKUM. 

James  H.  Lea,  being  duly  sworn,  deposeth  and  saith,  that 
he  is  the  cashier  of  the  Alton  branch  of  the  State  Bank  of 
Illinois,  and  has  been  for  the  last  ten  months.  That 
he  it  well  acquainted  *with  Albert  G.  Sloo  and  Hora- 
tio  G.  McClintoc,  lately  doing  business  in  the  town  of 
Alton,  county  and  State  aforesaid — and  that  said  Sloo  and 
McClintoc  were  partners  in  trade,  doing  business  under  the 

466 


434  YANDALIA. 


Sloo  v.  The  State  Bank  of  Illinois. 


name,  style  and  firm  of  A.  G.  Sloo  &  Co.,  on  the  twentieth 
day  of  April  last  past,  and  for  some  days  afterward.  That 
this  deponent  as  cashier  as  aforesaid,  previous  to  the  twentieth 
day  of  April  last  past,  called  upon  the  said  McClintoc  as  one 
of  "the  firm  of  A.  G.  Sloo  &  Co.,  to  give  to  this  deponent,  as 
cashier  as  aforesaid,  a  warrant  of  attorney  to  the  State  Bank 
of  Illinois,  for  the  amount  of  A.  G.  Sloo  &  Co.'s  indebtedness 
to  the  bank.  That  on  the  twentieth  day  of  April  last,  as 
aforesaid,  the  said  McClintoc,  as  one  of  the  firm,  and  in  the 
name  of  the  firm,  gave  to  Davis  and  Krum,  the  then  attorneys 
for  the  bank,  a  warrant  of  attorney,  for  the  sum  of  one  hun- 
dred and  twenty-five  thousand  dollars,  which  amount  was 
agreed  upon,  between  the  said  Lea  and  the  said  McClintoc, 
acting  for  the  firm  of  A.  G.  Sloo  &  Co.,  would  be  sufficient  to 
cover  the  entire  indebtedness  of  A.  G.  Sloo  &  Co.  to  the  State 
Bank  of  Illinois.  And  this  deponent  further  saith,  that  he, 
this  deponent,  also  agreed  with  said  A.  G.  Sloo  &  Co.,  that  he,  as 
the  cashier  of  the  Alton  branch  as  aforesaid,  would  indorse  upon 
the  execution,  or  cause  the  attorneys  for  the  bank  to  have  en- 
dorsed upon  the  execution  issued  upon  the  judgment  which 
should  be  entered  up  by  virtue  of  the  warrant  of  attorney,  so 
executed  as  aforesaid,  by  the  said  McClintoc,  as  one  of  the 
firm,  and  in  the  name  of  the  firm  of  A.  G.  Sloo  &  Co.,  any 
amount  which  should  prove  not  to  be  due  to  the  State  Bank 
of  Illinois,  after  the  bills  of  exchange,  either  drawn  or  in- 
dorsed, by  A.  G.  Sloo  &  Co.  as  aforesaid,  should  be  returned 
to  the  bank.  And  this  deponent  further  saith,  upon  a  careful 
calculation  which  this  deponent  caused  to  be  made,  and  which 
he  believes  to  be  correct,  there  is  due  and  owing  from  the 
said  A.  G.  Sloo  &  Co.,  to  the  President,  Directors  and  Com- 
pany of  the  State  Bank  of  Illinois,  for  bills  of  exchange, 
either  drawn  or  indorsed  by  the  said  A.  G.  Sloo  &  Co.,  the 
just  and  full  sum  of  one  hundred  and  ten  thousand,  seven  hun- 
dred and  thirty-seven  dollars  and  thirty-nine  cents ;  and  that 
the  difference  between  the  said  above  mentioned  sum,  and  the 
sum  of  one  hundred  and  twenty-five  thousand  dollars,  he,  this 
deponent,  has  directed  George  T.  M.  Davis,  as  the  attorney  of 
the  bank,  to  have  entered  on  the  execution  now  in  the  hands 
of  the  sheriff  of  the  county  of  Madison  and  State  of  Illinois — 
which  said  execution  was  issued  upon  the  judgment  entered 
up  as  hereinbefore  particularly  set  forth,  by  the  State  Bank  of 
Illinois,  and  against  Albert  G.  Sloo  and  Horatio  G.  McClintoc 
as  aforesaid,  trading  and  doing  business  under  the  name,  style 
and  firm  of  A.  G.  Sloo  &  Co.  And  this  deponent  further 
saith  that  the  entire  indebtedness  of  the  said  Sloo  and  Mc- 

456 


DECEMBER  TERM,  1837.  434 

Sloo  v.  The  State  Bank  of  Illinois. 

Clintoc    was   created   in   the   name    of  A.  G.  Sloo 
*&  Co.,  and  at  the  Alton  branch  of  the  State  Bank     [*435] 
of  Illinois ;  and  that  the  amount  above  set  forth  as 
due  and  owing  to  the  bank,  is  so  due  and  owing  from  said  Sloo 
and  McOlintoc  as  partners  in  trade,  etc.,  and  that  no  part  there- 
of is  the  individual  indebtedness  of  either  Albert  G.  Sloo  or 
Horatio  G.  McClintoc,  but  that  the  whole  amount  aforesaid  is 
due  and   owing  to  the  bank  aforesaid,  as  the  indebtedness  of 
A.  G.  Sloo  &  Co.,  and  this  deponent  further  saith  that  the 
warrant  of  attorney  above  referred  to,  is  the  only  one  that  has 
been  executed  either  by  the  said  A.  G.  Sloo  &  Co.  or  by  Al- 
bert G.  Sloo  or  Horatio  G.  McClintoc  to  the  State  Bank  of 
Illinois,  and  this  deponent  further  saith  that  at  the  time  the 
aforesaid  A.  G.  Sloo  &  Co.,  by  Horatio  G.  McClintoc,  as  one 
of  the  firm  and  in  the  name  of  the  firm  of  A.  G.  Sloo  &  Co., 
made  and  executed  the  aforesaid  warrant  of  attorney,  A.  G. 
Sloo  was  absent  from  the  town  of  Alton,  county  and  State 
aforesaid,  and  that  the  said  firm  of  A.  G.  Sloo    &   Co.   had 
failed,  but  that  within  a  day  or  two  after  the  execution  of  the 
aforesaid  warrant  of  attorney,  the  said  A.  G.  Sloo  returned  to 
Alton;  that  between  the  time  of  the  said  A.  G.  Sloo's  return  and 
the  day  upon  which  the  judgment  was  entered  up,  some  eight 
or  ten  days  intervened,  and  that  during  said  term  of  eight  or 
ten  days,  this  deponent  and  the  said  Sloo  had  conversations 
relative  to  A.  G.  Sloo  &  Co.'s  indebtedness  to   the  bank  as 
aforesaid,  in  several  of  which  said  conversations,  the  jiower  of 
attorney  to  confess  judgment,  and  upon  which  the  judgment 
was  confessed  by  A.  G.  Sloo  &  Co.  to  the  State  Bank  of  Illi- 
nois, was  mentioned  and  referred  to  by  the  said  Sloo;  that  in  each 
and  all  of  those  conversations  so  had,  and  in  which  the  afore- 
said warrant  of  attorney  was  spoken  of  by  the  said  Slop  to 
this  deponent,  the  said  Sloo  never  did  either  directly  or  indi- 
rectly intimate  to  this  deponent  that  he,  the  said  Sloo,  did  not 
consider  the  warrant  of  attorney  to  confess  judgment  as  afore- 
said binding  upon  him,  the  said  Sloo,  but  on  the  contrary  from 
the  tenor  and  effect  of  each  and  all  of  such  conversations  so 
had  as  aforesaid  the  said  Sloo  always  left  the  firm  impression 
upon  the  mind  of  this  deponent,  that  such  confession  so  made 
and  executed  as  aforesaid,  was  all  right,  and  that  lie,  the  said 
Sloo,  acquiesced  in  the  said  McClintoc's  giving  the  confession 
as  aforesaid— that  such  impressions,  so  made  upon  the  mind 
of  this  deponent  as  aforesaid,  were  always  made  from  the  con- 
versation had  by  the  said  Sloo  and  this  deponent. 

And  this  deponent  further  saith  that  on  or  about  the  second 
day  of  May  last  past,  and  previous  to  the  entering  up  of  the 
judgment  as  aforesaid,  this  deponent  called  upon  said  I 


435  YANDALIA. 


Sloo  v.  The  State  Bank  of  Illinois. 


proposed  to  him  to  offer  to   the   bank  a  mortgage  on  his, 
the  said  Sloo's,  real  estate,  and  to   hold   the  personal  security 

the  bank  then  had  in  addition  to  said  mortgage ;  that 
[*436]  '  said  Sloo  replied  thereto,  he,  the  *said  Sloo,  would 

think  of  it,  and  inform  this  deponent  the  next  day ; 
that  this  deponont  saw  said  Sloo  the  next  day,  and  asked  said 
Sloo  if  he  had  thought  of  it ;  that  said  Sloo  replied  to  this 
deponent  he  had,  but  that  it  was  too  hard,  and  further  replied 
to  this  deponent  as  follows :  "  The  bank  does  not  intend  to 
come  to  fair  terms  with  me  ;  they  have  me  in  their  power  and 
next  will  be  down  upon  me  with  our  confession  of  judgment 
and  ruin  me."  And  this  deponent  further  saith  he  distinctly 
recollects  the  last  above  referred  to  conversation,  as  it  was  the 
last  conversation  had  with  said  Sloo  upon  the  subject,  and  that 
immediately  thereafter  he  instructed  John  M.  Krum,  then  of 
the  firm  of  Davis  &  Kruin,  to  cause  the  judgment  to  be  en- 
tered up  in  the  St.  Clair  Circuit  Court,  which  was  accordingly 
done.  And  this  deponent  further  saith  that  to  the  knowledge 
or  belief  of  this  deponent,  the  said  Sloo  never  has  given  any 
of  the  officers  of  the  State  Bank  of  Illinois,  or  of  the  Alton 
branch  of  the  State  Bank,  any  notice  whatever  that  he  did 
not  consider  himself,  the  said  Sloo,  as  bound  by  the  act  of  H. 
G.  McClintoc  in  giving  the  aforesaid  wan-ant  of  attorney, until 
within  the  last  five  days — and  from  the  usual  and  common 
mode  of  said  bank's  transacting  its  business — if  any  such  no- 
tice had  been  given  to  any  other  of  the  officers  of  the  bank 
than  this  deponent,  said  notice,  or  a  copy  thereof,  would  have 
been  given  to  this  deponent.  And  this  deponent  further  saith 
that  no  such  notice  as  aforesaid  wras  ever  given  to  this  depo- 
nent, either  in  writing  or  orally.  And  this  deponent  further 
saith  that  he  has  no  interest  either  directly  or  indirectly  in  the 
event  of  this  suit,  and  further  this  deponent  saith  not. 

J.  H.  LEA. 

Benjamin  F.  Edwards  being  duly  sworn  deposeth  and  saith, 
that  he  is  a  director  in  the  Alton  branch  of  the  State  Bank 
of  Illinois,  and  that  he  is  acquainted  with  Albert  G.  Sloo  and 
Horatio  G.  McClintoc,  lately  trading  and  doing  business  under 
the  name,  style  and  firm  of  A.  G.  Sloo  &  Co. ;  that  a  day  or 
two  after  A.  G.  Sloo's  return  to  Alton,  this  deponent  was  pres- 
ent at  a  conversation  had  between  said  Sloo,  this  deponent,  and 
two  or  three  others;  that  the  whole  of  said  conversation  so  had 
as  aforesaid,  was  relative  to  A.  G.  Sloo  &  Co.'s  indebtedness  to 
the  State  Bank  of  Illinois,  and  for  which  said  indebtedness 
the  judgment  at  the  St.  Clair  Circuit  Court  was  obtained  by 
the  bank  against  the  said  Sloo  and  McClintuc;  that  in  the 
course  of  said  conversation  the  said  Sloo  remarked  to  this  de- 

458 


DECEMBEE  TEEM,  1837.  436 


Sloo  v.  The  State  Bank  of  Illinois. 


ponent  and  to  the  others  in  the  room,  "  I  am  in  the  power  of 
the  bank  and  next  you  will "  (meaning  the  bank  can)  "  come 
down  upon  me,"  or  words  to  that  effect ;  that  from  the  tenor 
of  the  whole  of  said  conversation  this  deponent  expressly  un- 
derstood the  said  Sloo  to  allude  to  the  power  of  attor- 
ney executed  by  H.  G.  McClintoc  in  the  *narne  of  and  [*437] 
as  one  of  the  firm  of  A.  G.  Sloo  &  Co.,  and  then  held 
by  the  bank,  and  upon  which  the  judgment  in  the  St.  Clair 
Circuit  Court  was  confessed  by  said  Sloo  and  McClintoc.  And 
that  from  the  whole  tenor  of  said  conversation  this  deponent 
expressly  understood  the  said  Sloo  as  assenting  to  the  act  of 
the  said  McClintoc  in  giving  the  aforementioned  warrant  of 
attorney.  That  the  said  Sloo  did  not  at  that  time  or  at  any 
other  time  previous  to  entering  up  the  judgment  aforesaid 
dissent,  either  directly  or  indirectly  in  my  presence,  from  the 
act  of  said  McCliutoc  in  giving  the  aforementioned  warrant  of 
attorney,  and  that  said  conversation  took  place  some  days  pre- 
vious to  entering  up  the  judgment  aforesaid  against  said  Sloo 
»and  McClintoc.  B.  F.  EDWAKDS. 

Henry  K.  Lathy  being  duly  sworn,  deposeth  and  saith,  that 
he  is  a  director  in  the  Alton  branch  of  the  State  Bank  of  Illi- 
nois, and  that  he  is  acquainted  with  Albert  G.  Sloo  and  Ho- 
ratio G.  McClintoc,  lately  trading  and  doing  business  under  the 
name,  style  and  firm  of  A.  G.  Sloo  &  Co.;  that  the  next  day 
after  A.  G.  Sloo's  return  to  Alton,  this  deponent  was  present 
at  a  conversation  had  between  said  Sloo,  this  deponent,  and 
three  or  four  others;  that  the  whole  of  said  conversation  so  had 
as  aforesaid,  was  relative  to  A.  G.  Sloo  and  Co.'s  indebtedness 
to  the  State  Bank  of  Illinois,  and  for  which  said  indebtedness 
the  judgment  of  the  St.  Clair  Circuit  Court  was  obtained  by 
the  bank  against  the  said  Sloo  and  McClintoc;  that  in  the 
course  of  said  conversation  the  said  Sloo  remarked  to  this  de- 
ponent and  to  the  others  in  the  room,  "  I  am  in  the  rower  of 
the  bank,  and  next  week,  you "  (meaning  the  bank)  "  can 
come  down  upon  me ;"  that  from  the  tenor  of  the  whole  of 
said  conversation,  this  deponent  expressly  understood  the  said 
Sloo  to  allude  to  the  power  of  attorney  executed  by  II.  G. 
McClintoc  in  the  name  and  as  one  of  the  firm  of  A.  G.  Sloo 
&  Co.,  aud  then  held  by  the  bank,  and  that  from  the  whole 
tenor  of  said  conversation,  this  deponent  expressly  nuclei-stood 
the  said  Sloo  as  assenting  to  the  act  of  the  said  McClintoc  in 
giving  the  aforementioned  warrant  of  attorney.  That  the 
said  Sloo  did  not  at  that  time  or  any  other  time  previous  to 
entering  up  the  judgment  afore.-aid,  dissent  either  directly  or 
indirectly  from  the  act  of  said  McClintoc  in  giving  the  afore- 
mentioned warrant  of  attorney,  and  that  euid  conversation 

459 


437  VANDALIA. 


Sloo  r .  The  State  Bank  of  Illinois. 


took  place  some  days  previous  to  entering  the  judgment 
aforesaid  against  the  said  Sloo  and  MeClintoc ;  and  this  de- 
ponent further  saith  he  has  no  interest  either  directly  or  in- 
directly hi  the  event  of  this  suit. 

H.  K.  LATHY. 

And  after  arguments  of  counsel  and  due  consideration,  the 

Court  overruled  said  motion,  to  which  opinion  and 

[*43S]     decision  of  *the  Court,  the  said  Sloo,  by  his  counsel, 

excepts,  and  prays   the   Court   to  sign  and  seal  this 

his  bill  of  exceptions.  SIDNEY  BKEESE.     [L.  s.]" 

The  record  also  states,  "And  -thereupon  on  Wednesday  the 
23d  of  August,  1837,  the  following  entry  is  entered  on  the 
records  of  this  Court,  to  wit : 
The  President,  Directors,  and  Company  } 
of  the  State  Bank  of  Illinois  v.  A.  G.  > 
Sloo  and  Horatio  G.  McClintoc.  ) 

And  now  at  this  day  came  the  plaintiffs  by  Geo.  T.  M.  Davis, 
their  attorney,  and  freely  here  in  Court  remit  to  the  said  de- 
fendants the  sum  of  fourteen  thousand  two  hundred  and 
twenty-two  dollars  and  sixty-one  cents,  part  of  the  damages 
above  by  the  said  defendants  confessed  to  be  due." 

«T.  SEMPLE,  D.  J.  BAKER  and  H.  EDDY  argued  the  cause  for 
the  plaintiff  in  error.  A  written  argument  on  the  part  of  the 
plaintiff  in  error,  by  J.  ROBINSON,  was  also  read. 

A.  COWLES,  S.  T.  LOGAN,  T.  FORD  and  H.  GAMBLE,  for  the 
defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  is  a  writ  of  error,  prosecuted  on  the  part  of  Sloo,  to 
reverse  the  judgment  entered  in  this  cause  against  him,  on  the 
following  statement  of  facts  appearing  on  the  record  : 

A  judgment,  by  confession,  was  entered  in  the  St.  Clair  Cir- 
cuit Court,  in  favor  of  the  defendants  in  error,  against  Sloo  and 
McClintoc,  trading  under  the  firm  of  Sloo  &  Co.,  for  $125,000. 

This  confession  is  made  by  Alfred  Cowles,  an  attorney  of 
that  Court,  under  a  warrant  of  attorney,  executed  by  McClin- 
toc alone,  in  the  name  of  the  firm,  without  seal,  authorizing 
any  attorney  of  any  court  in  this  State  to  appear  for  the  part- 
ners and  confess  the  judgment.  It  further  appears  that  the 
residence  and  place  of  business  of  the  plaintiffs  in  error,  was  at 
Alton,  in  the  county  of  Madison,  where  the  warrant  of  attor- 
ney was  executed.  No  bond  or  evidence  of  previous  indebt- 
edness was  tiled  or  exhibited  to  the  Court  with  the  power  of 

460 


DECEMBEE  TEEM,  1837.  438 

Sloo  v.  The  State  Bank  of  Illinois. 

attorney  on  which  the  judgment  was  confessed,  but  the  bare 
authority  only  to  confess  the  judgment  for  the  sum  specified, 
appears  to  have  been  filed  when  the  confession  was  entered. 

At  the  term  immediately  subsequent  to  the  rendition  of  this 
judgment,  Sloo  appeared,  and  upon  affidavits  filed,  moved  the 
Circuit  Court  to  set  aside  the  judgment,  or  restrain  the  levying 
of  the  execution  upon  his  property,  because  he  never  exe- 
cuted the  power,  nor  authorized  McClintoc  to  execute  it  for 
him. 

The  Circuit  Court  denied  the  motion,  to  which  the  plaintiff 
in  error  excepted  and  filed  his  bill  of  exceptions. 

*The  plaintiff  in  error,  Sloo,  assigns  for  error  the     [*439] 
refusal  of  the  Circuit  Court  to  grant  his  application, 
and  to  set  aside  the  said  judgment  as  to  him,  or  to  restrain  the 
execution  of  the  judgment  as  to  him,  and  also  makes  a  general 
assignment  of  errors,  to  which  the  defendants  have  joined. 

A  preliminary  question  has  been  raised  by  the  counsel  for 
the  bank,  which  it  is  necessary  to  dispose  of,  as,  on  that  disposi- 
tion, the  further  action  of  this  Court  will  depend. 

It  is  contended  that  the  assignment  of  errors  in  this  case  is 
an  assignment  of  errors  in  fact,  not  cognizable  in  tliis  Court. 

The  transcript  returned  upon  the  writ  of  error,  commences 
with  the  application,  notice  of  motion,  and  reasons  for  moving 
to  set  aside  the  judgment  as  to  the  applicant,  and  then  recites 
that  judgment,  together  with  the  wrarrant  of  attorney,  the 
proof,  its  execution  and  the  declaration  and  confession;  after 
which  follow  the  affidavits  of  the  several  parties,  and  the 
refusal  of  the  Court  to  grant  the  motion;  all  this  is  contained 
in  the  bill  of  exceptions,  signed  by  the  circuit  judge;  after 
which  is  a  remittitur,  entered  on  the  next  day  after  the 
decision  on  the  motion,  by  the  plaintiffs'  attorney,  for 
$14.222.61. 

That  the  record  is  inartificially  drawn  up  may  be  readily 
conceded.  The  record  should  have  presented  the  proceedings 
in  the  order  of  time  in  which  they  transpired,  commencing 
with  those  on  the  rendition  of  the  judgment.  Then  the  sub- 
sequent application  and  proceedings  had  thereon  should  have 
followed;  but  because  this  clerical  error  has  transpired,  it  will 
not,  we  conceive,  make  the  assignment  of  errors  an  assignment 
of  errors  in  fact.  We  apprehend  the  counsel  has  been  misled 
in  this  particular,  and  considered  the  question  in  a  different 
aspect  from  that  in  which  the  proceedings  appear.  But  are 
wo  to  sacrifice  substance  to  mere  form?  And  is  the  inverted 
order  of  time  in  which  the  proceedings  are  presented  here  to 
be  a  sufficient  reason  for  refusing  that  justice  which  the  very 
right  of  the  case,  as  presented  by  the  record,  shall  demand, 

401 


439  YANDALIA. 


SIoo  v.  The  State  Bank  of  Illinois. 


and  turn  the  yarty  round  to  sue  out  a  writ  of  error  coram 
n>bis,  which  lias  been  disused  and  superseded  by  the  more 
summary  mode  of  a  direct  application  to  the  Court  for  the 
rightful  exercise  of  its  own  powers,  over  its  proceedings  and 
those  of  its  officers  ? 

We  think  the  exception  not  well  taken.  The  question  pre- 
sented in  the  Court  below,  was  whether  a  judgment,  unauthor- 
ized and  illegal,  had  been  rendered  as  to  Sloo.  That  depended 
on  the  authority  of  McClintoc  to  authorize  the  confession  in 
favor  of  the  bank,  in  the  name  of  Sloo.  The  affidavit  estab- 
lishing the  due  execution  of  the  power  by  McClintoc,  filed 
with  the  declaration,  and  on  which  proof  the  judgment  was 
ordered  to  be  entered,  shows  that  McCiintoc,  as  the  partner, 
without  the  consent  or  authority  of  Sloo,  executed 
[*440]  the  power  in  question;  and  consequently  *the  legal 
point  to  be  determined,  is,  whether  such  a  power,  so 
executed,  will  authorize  the  rendition  of  the  judgment  against 
the  other  partner,  who  neither  authorized  nor  assented  to  the 
confession.  Apart  then  from  the  affidavits  on  which  Sloo 
based  his  application  for  setting  aside  the  judgment  as  to  him, 
the  Circuit  Court  had,  in  the  original  proceedings,  evidence 
entirely  sufficient,  on  which  to  determine  the  irregularity  of 
the  proceedings  and  of  the  erroneous  character  of  the  judg- 
ment rendered,  without  recurring  to  evidence  aliunde  the 
record.  It  is  true,  the  special  errors  assigned  in  this  Court,  go 
to  the  refusal  to  grant  the  motion,  and  do  not  specify  this  par- 
ticular ground  in  the  original  record.  Still  we  conceive  we 
are  bound  to  consider  the  whole  proceedings  as  fairly  before 
the  Court,  without  regarding  the  manner  in  which  the  clerk 
has  made  them  up,  and  that  this  portion  of  the  record,  as  well 
as  that  relating  to  the  facts  stated  in  the  affidavits  by  both 
parties,  was  equally  before  the  Circuit  Court,  as  it  most 
clearly  is  here. 

The  defendants  in  error,  having  joined  in  error,  might  also 
be  considered  as  waiving  all  objection,  if  the  rigid  rules  of 
pleading  were  insisted  on,  the  joinder  being  only  considered 
as  a  demurrer  to  the  assignment  of  errors  in  cases  where  the 
errors  are  not  well  assigned,  and  contradict  the  record.  It  is 
strenuously  insisted,  that  this  Court  can  not  decide  this  case 
without  determining  questions  of  fact  without  the  record,  in 
judging  whether  the  Circuit  Court  erred  in  refusing  to  set 
aside  the  judgment  on  the  application  made,  and  that  it  has  no 
jurisdiction  for  such  purpose. 

It  is  a  sufficient  answer  to  this  objection  to  quote  the  juris- 
diction expressly  conferred  by  statute :  "  To  determine  all 
matters  of  appeal,  error  or  complaint  from  the  judgment  or 

462 


DECEMBER  TEEM,  1837.  440 

Sloo  v.  The  State  Bank  of  Illinois. 

decree,  of  any  of  the  Circuit  Courts  of  this  State,  and  from 
such  other  inferior  courts  as  may  hereafter  be  established  by 
law,  in  all  matters  of  law  and  equity,  wherein  the  rules  of  law 
or  •  principles  of  equity  appear,  from  the  filesv  records  or 
exhibits  of  any  such  court,  to  have  been  erroneously  adjudged 
and  determined." 

It  is  then  the  judgment  of  the  law  on  the  facts,  as  they 
appear  in  the  record,  which  is  to  be  investigated  to  ascertain 
whether  it  has  been  correctly  pronounced,  as  it  shall  appear  to 
have  been  decided  in  the  proceedings  brought  up,  and  not  a 
new  investigation  of  facts  de/wrs  the  record.  The  expres- 
sions used  in  the  statute  defining  the  jurisdiction  of  this  Court, 
we  agree,  are  not  to  be  extended  to  give  this  Court  cognizance 
of  cases  in  proceedings  or  judgments  merely  interlocutory ; 
but  we  aver  that  whenever  a  decision  takes  place  in  any  of  the 
Circuit  or  inferior  Courts  of  record  of  this  State,  which  is  final, 
and  of  which  a  record  can  be  made,  and  which  shall  decide  the 
right  of  property  or  personal  liberty,  complete  jurisdiction  is 
conferred  on  this  Court  to  hear  and  determine  the 
same.  Coke,  in  his  ^Commentaries  on  Littleton,  [*441] 
saith,  that  "  A  writ  of  error  lieth  when  a  man  is 
grieved  by  an  error  in  the  foundation,  proceedings,  judgment 
or  execution  in  a  cause ;"  and  can  it  be  said  there  is  no  grievance 
in  the  rendering  a  judgment  against  one  who  is  not  summoned 
to  appear  in  court,  and  who  has  not  authorized  the  judgment, 
nor  been,  by  his  consent,  a  party  to  it?  This  Court  having  a 
revisionary  power  over  all  errors  happening  in  the  Circuit 
Court  where  the  cause  was  prosecuted,  and  that  Court  having 
entertained  jurisdiction  of  the  cause,  and  of  the  particular 
point  presented,  it  can  not  now  be  objected  here,  that  this 
Court  has  no  power  to  revise  those  proceedings.  It  seems  to 
us,  that,  if  the  reasoning  of  the  defendants'  counsel  was  correct, 
the  adoption  of  his  doctrine  would  lead  to  an  almost  entire 
subversion  of  the  objects  for  which  this  tribunal  was  created. 
There  is  nothing,  then,  in  the  present  case,  to  distinguish  it 
from  an  ordinary  case  of  a  writ  of  error,  and  as  such  we  pro- 
ceed to  the  merits  of  the  grounds  assigned  for  error. 

That  the  Circuit  Court  "should  have  vacated  the  judgment 
as  to  Sloo,  we  can  not  entertain  a  doubt ;  for,  as  has  been  be- 
fore remarked,  the  affidavit  of  the  witness  to  the  execution  of 
the  power  of  attorney,  under  which  the  judgment  was  con- 
fessed and  entered  up,  expressly  declares  that  the  power  wae 
signed  by  McClintoc  for  the  firm  of  A.  G.  Sloo  &  Co.,  and  it 
does  not  appear  that  McClintoc  had  the  least  authority  what- 
ever for  doing  the  act. 

Without  then  recurring:,  for  the  present,  to  the  affidavits 

463 


441  VANDALIA. 


Sloo  v.  The  Shite  Bank  of  Illinois. 


and  proofs  exhibited  on  the  motion,  the  simple  question  is 
presented,  whether  one  partner  can  confess  a  judgment  in  the 
name  of  his  co-partner. 

It  is  undeniable,  that  unless  there  be  an  express  authority  to 
the  partner  from  the  other,  or  he  assent  to  it,  the  power  of 
attorney  executed  by  one  partner  in  the  name  of  the  other, 
as  to  him,  is  void.  The  whole  current  of  British  and  Ameri- 
can authorities  sustains  this  rule.  Indeed  we  have  not  seen, 
nor  do  we  know  of  a  single  case  to  the  contrary. 

In  general,  the  power  of  attorney  to  confess  the  judgment 
is  accompanied  by  a  bond,  as  evidence  of  the  indebtedness  or 
amount  due. 

How  or  when  this  peculiar  security  for  a  debt  authorizing 
a  creditor  to  sign  a  judgment  and  issue  execution  without 
even  issuing  a  writ,  was  first  invented,  does  not  appear.  Chitty, 
in  commenting  on  it,  says,  "  It  has  now  become  one  of  the 
most  usual  collateral  securities  on  loans  of  money,  or  contracts 
to  pay  an  annuity,  and  for  debts  due,  but  is  usually  accompa- 
nied with  some  other  deed  or  security."  It  is  also  under  seal. 
In  the  present  case,  the  power  has  no  seal,  and  it  has  therefore 
been  supposed  to  place  the  case  on  a  different  footing  from 
the  adjudged  cases,  most  of  which  assign,  as  a  reason 
[*442]  why  one  partner  *can  not  confess  a  judgment  in  the 
name  of  the  other,  that  he  can  not  bind  the  co-part- 
nership by  an  act  under  seal.  The  ancient  reason,  in  the 
earliest  cases  in  which  the  question  arose,  wyas,  that  the  seal  of 
the  other  partner  was  his  private  property,  and  could  not  be 
subject  to  the  control  or  use  of  the  other.  Another  given  is 
that  it  is  an  act  not  within  the  limits  of  co-partnership  business. 

In  the  case  of  Harrison  v.  Jackson,  Sykes  and  Rushfwth, 
(7  Term  R.  207,)  the  agreement  related  to  a  partnership  trans- 
action, was  under  seal  and  executed  by  Sykes,  the  other  part- 
ners not  being  present.  In  an  action  of  covenant  against  the 
three  partners,  on  this  agreement,  Lord  Kenyon,  who  gave 
the  opinion  of  the  Court,  said  he  admitted  the  authority  of 
the  partners  according  to  the  law  merchant,  or  mercantile 
transactions,  but  denied  that  any  power  existed  to  bind  each 
other  by  seal,  unless  a  particular  power  be  given  for  that  pur- 
pose; and  furthermore  remarked,  that  it  would  be  a  most 
alarming  doctrine  to  the  mercantile  world,  if  one  partner  could 
bind  the  others  by  such  a  deed  as  the  one  in  question.  It 
would  extend  to  cases  of  mortgages,  and  would  enable  a  part- 
ner to  give  a  favorite  creditor  a  real  lien  on  the  estates  of  the 
other  partners.  In  the  cases  of  Ball  v.  Demsterville,  (4  Term 
R  343,)  Clement  v.  Brush,  (3  J.  C.  180,)  Murphy  v.  Blood- 
good,  (9  Johns.  285,)  Green  v.  Beal,  (2  CainesK.  254,)  Mot- 

4  4 


DECEMBEE  TEEM,  1837.  442 

Sloo  v.  The  State  Bank  of  Illinois. 

teux  v.  St.  AuUn,  (2  Black.  1133,)  Ton  v.  Goodrich,  (2 
Johns.  213,)  the  same  principle  was  recognized.  In  Pearson 
v.  Hooker.  (  3  Johns.  68,)  it  was  decided  that  one  partner  may 
release  a  debt  due  the  partnership  by  a  deed  under  seal. 

Kent,Chief  Justice,  however,  distinguishes  this  particular  case 
from  the  class  of  cases  referred  to,  "  because  there  was  no  at- 
tempt to  charge  the  partnership  with  a  debt  by  means  of  a 
specialty,  but  it  is  the  ordinary  release  of  a  partnership  debt. 
Each  partner  is  competent  to  sell  the  effects,  or  to  compound, 
or  discharge  the  partnership  demands ;  each  having  an  entire 
control  over  the  personal  estate." 

The  Supreme  Court  of  New  York,  in  the  case  of  M"1  Bride 
v.  Hogan,  after  an  elaborate  examination  of  all  the  cases  bear- 
ing on  this  question,  came  to  the  conclusion,  "  That  one  part- 
ner can  not  do  any  act  under  seal,  to  aifect  the  interest  of  his 
co-partner,  unless  it  is  to  release  a  debt."  It  follows,  then, 
according  to  the  recognized  doctrine  of  these  adjudicated  cases, 
that  this  power  of  attorney,  had  it  been  under  seal,  would 
have  been  a  case  identical  with  those  cited. 

We  may  be  permitted  to  ask,  what  difference  there  can 
possibly  be  in  principle,  and  effect  of  the  act  done,  in  the  cases 
cited,  and  the  one  under  consideration.     Whether  the 
power  to  confess  *the  judgment  be  under  seal  or  not,     [*443] 
can  surely  make  no  difference  in  its  consequences,  or 
intended  objects.     If  the  power  is  valid,  not  being  under  seal, 
the  consequences  and  results  of  the  act  are  precisely  similar  to 
those  which  the  principles  of  the  decisions  cited,  most  strongly 
urge  as  unjust  and  illegal ;  and  if  void  for  want  of  a  seal,  the 
case  is  only  thereby  rendered  more  clear  and  certain. 

To  judge  of  the  power  of  the  partner,  and  the  legality  of 
his  act,  we  are  necessarily  required  to  examine  the  consequences 
and  effect  of  his  act.  And  what  are  they  ?  To  subject  all  the 
private  as  well  as  joint  property  of  the  partner,  both  real  and 
personal,  to  execution  and  sale  ;  a  still  further  consequence,  his 
person  to  imprisonment,  in  execution  of  the  judgment  so  con- 
fessed, without  his  authority  or  assent,  express  or  implied— 
nay,  against  his  most  solemn  protestations,  or  possibly  obtained 
through  misapprehensions,  or  fear,  or  through  deceitful  repre- 
sentations held  out  to  a  weak  and  indecisive  mind  ;  or  it  might 
happen  by  collusion,  and  for  the  purpose  of  fraud.  When  such 
results  maybe  readily  conceived — nay,  be  like  to  happen,  can 
it  indeed  make  any  real  difference  whether  the  act,  from 
wi\ ich  such  consequences  might  flow,  is  or  is  not  under  seal  ? 
What  magic  is  there  in  a  scrawl,  for  that  is,  by  our  law,  in 
effect,  a  seal  ?  Can  the  legality,  reason,  or  justice  of  the 
VOL.  i-ai  <fis 


VANDALIA. 


Sloo  v.  The  State  Bank  of  Illinois. 


depend  on  a  legal  subtlety,  or  shall  the  case  be  decided  on  the 
broad  and  firm  basis  of  reason  and  right  ? 

We  cast  aside  the  distinction  as  unworthy  the  consideration 
of  the  tribunals  of  the  present  age,  and  unhesitatingly  decide, 
that  justice  and  right  ought  not  in  any  case  to  be  sacrificed  to 
more  forms,  however  ancient  they  may  1)3,  or  however  numer- 
ous may  have  been  the  precedents  produced.  We  do  not,  how- 
•evcr,  wish  to  be  understood  as  discarding  those  which  are  es- 
sential to  the  correct  and  regu^ir  order  of  proceedings,  and 
which  are  necessary  to  be  observed  in  the  proper  and  system- 
atic conducting  of  cases. 

We  have  thus  far  considered  the  case  without  reference  to 
the  affidavits  read  on  the  motion.  From  an  examination  of  tho 
contents  of  those,  our  opinion  is  strengthened  as  to  the  views 
already  expressed.  There  can  be  no  doubt,  from  the  statement 
"  of  McClintoc,  and  all  those  who  testify  on  the  part  of  the  Bank, 
that  McClintoc  had  no  authority  whatever,  from  Sloo,  to  make 
the  power  of  attorney.  The  judgment  is  also  for  a  much  larger 
sum  than  was  actually  due  at  the  time,  it  embracing  contingent 
liabilities  not  then  at  maturity,  and  was,  in  fact,  entered  up  for 
$14,222.  61  more  than  was  due,  beinsr  the  amount  remitted  on 
the  next  day  after  the  Circuit  Court  refused  to  grant  the  ap- 
plication of  Sloo. 

An  attempt  is  made  to  draw  from  some  expressions 
of  Sloo,  *an  iriference  of  his  sanction  of  the  act  of  Mc- 
Clintoc, long  after  the  rower  had  been  signed  and  de- 
livered. It  may  be  doubted  whether  a  subsequent  agreement 
to,  or  assent  of,  the  act  of  McClintoc,  after  the  judgment  had 
been  rendered  on  an  invalid  power,  would  legalize  the  irregu- 
lar and  unauthorized  confession  ;  but  it  is  sufficient  in  the  pres- 
ent case  to  say  that,  in  our  opinion,  the  attempt  to  establish 
such  assent  or  approval  has  signally  failed. 

In  every  aspect  in  which  this  case  can  be  viewed,  we  have  no 
hesitation  in  saying  that  the  judgment  of  the  Circuit  Court  is 
erroneous  and  void,  as  to  Slob,  having  been  entered  up  without 
authority,  and  that  the  Court  below  ought  to  have  vacated  the 
judgment  on  the  application  of  Sloo.  It  is  therefore  ordered, 
that  the  judgment  of  the  Circuit  Court,  as  to  Sloo,  be  reversed, 
and  that  Court  directed  to  cause  the  execution  thereon,  as  to 
Sloo,  to  be  set  aside.  The  plaintiff  in  error  to  recover  his  costs 
in  this  Court  and  the  Court  below. 

Judgment  reversed  as  to  Sloo. 

LOCKWOOD,  J.,  dissented  from  the  opinion  of  the  court. 

Old  Note.  After  a  general  appearance  by  an  attorney  for  both  the  defend- 
ants, who  were  partners,  and  the  pleadings  entered  by  him  in  the  name  of 
both,  one  of  the  defendants  can  not  plead  that  he  was  not  served  with 

466 


DECEMBER  TERM,  1837.  4-H 

Sloo  v.  The  State  Bank  of  Illinois. 

process,  and  had  not  appeared  in  the  suit.     Field  v.  Gibbs  et  al.,  1  Peters 
0.  C.  R.  155. 

A  warrant  of  attorney  to  confess  judgment  can  not  be  expressly  revoked.  A 
warrant  of  attorney  axithorizedthe  confession  or  judgment  at  a  certain  term, 
for  a  certain  sum,  in  an  action  of  debt;  and  the  judgment  was  confessed  ac- 
cordingly. Held,  that  the  judgment  was  not  erroneous,  merely  because  the 
nature  of  the  debt  was  not  particularly  described  in  the  warrant. 

The  defendant's  appearance  to  the  action  by  attorney,  prevents  him  from 
making  any  objection  relative  to  the  process.  Eldridge  r.  Folwell  et  al.,  3 
Blackf.  207. 

Where  an  attorney  appears  for  a  party,  the  Court  will  look  no  further,  but 
will  proceed  as  if  he  had  sufficient,  authority,  and  leave  the  party  to  his  ac- 
tion against  him.  Jackson  v.  Stewart,  6  Johns.  34;  He  nek  v.  Todhunter,  7 
Har.  &  J.  275;  Harding  v.  Hull,  5  Har.  &  J.  478;  Munnikuyson  v.  Dorset,  2 
Har.  &  Gill,  374. 

If  an  attorney  appear  for  a  defendant,  (whether  process  has  been  served  or 
not,)  without  his  authority,  and  confess  judgment,  or  let  it  go  by  default,  the 
judgment  is  regular,  and  will  not  be  set  aside ;  but  the  attorney  is  liable  to 
an  action.  Denton  v.  Noyes,  6  Johns.  296.  See  4  Monr.  377. 

But  if  there  were  fraud  or  collusion  between  the  plaintiff  and  the  defend- 
ant's attorney,  qr  if  he  be  not  responsible,  or  perfectly  competent  to  answer 
to  his  assumed  client,  the  Court  will  relieve  against  the  judgment.  6 
Johns.  296. 

A  default  for  not  pleading  will  be  opened,  if  it  were  suffered  by  the  neg- 
lect of  an  attorney  who  is  insolvent.  Meacham  v.  Dudley,  6  Wend.  514. 

In  Ohio,  a  party  is  not  concluded  by  the  acts  of  an  attorney  who  appears 
without  authority;  and  if  no  process  has  been  served  on  the  defendant,  the 
Court  will  set  aside  a  judgment,  even  at  a  subsequent  term,  obtained  after 
such  unauthorized  appearance.  Crichfield  v.  Porter,  3  Ham.  518. 

Though  in  Kentucky  an  authority  will  be  presumed,  when  an  attorney 
appears  for  a  defendant  not  served  with  process,  yet  if  the  defendant  prove 
that  he  had  no  authority,  his  rights  can  not  be  affected  by  the  attorney's  acts. 
Handley  v.  Statelor,  6  Litt.  186. 

An  appearance  by  an  attorney  without  authority^  is  good.  Rust  t>. 
Frothingham  et  al.,  Breese,  260. 

Where  an  attorney  commences  an  action  in  the  name  of  another,  or 
appears  for  another,  the  Court  will  presume  he  had  authority  to  do  so,  until 
the  contrary  appears.  Ransom  v.  Jones,  ante  291. 

4C7 


DECISION 


OF  THE 


SUPREME  COURT 


OP  THE 


STATE  OF  ILLINOIS, 


DELIVERED 


JUNE    TERM,  1838,  AT  VANDALIA. 
Note.    LOCKWOOD  and  SMITH,  Justices,  were  not  present  at  this  term. 

JUSTIN  BUTTERFIELD,  plaintiff  in  error,  v.  JAMES  KINZIE, 
defendant  in  error. 

Error  to  Cook. 

NOTE — DEMAND — PROOF — PLEADING. — In  an  action  against  the  maker 
of  a  note  or  the  acceptor  of  a  bill  of  exchange,  payable  at  a  specified  place, 
it  is  not  necessary  to  aver  or  prove  a  demand  of  payment  at  such  place. 

THIS  cause  was  heard  in  the  Circuit  Court  of  Cook  county, 
at  the  March  term,  1838,  before  the  Hon.  John  Pearson.  The 
judgment  of  the  Court  below  was  in  favor  of  Kinzie,  the  de- 
fendant in  error. 

This  cause  was  by  agreement  of  parties  submitted  to  the 
Supreme  Court  for  its  decision. 

CITED:  Promissory  note,  tender  not  a  bar,  costs.  41  111.  270;  when  de- 
mand unnecessary.  37  111.  144;  1  Scam.  547;  62  111.  63;  whether  neces- 
sary. 11  111.  471;  100  Til.  602;  102  111.  259. 

In  actions  on  promissory  notes,  against  the  maker,  or  on  bills  of  exchange, 
where  the  suit  is  against  the  maker  in  the  one  case,  and  the  acceptor  in  the 
other,  and  the  note  or  bill  is  made  payable  at  a  specified  time  and  place,  it  is 
not  necessary  to  aver  in  the  declaration,  or  prove  on  the  trial,  that  a  demand 
was  made  in  order  to  maintain  the  action.  But  if  the  maker  or  acceptor 
•was  at  the  place  at  the  time  designated,  and  was  ready  and  offered  to  pay 
the  money,  it  was  matter  of  defense  to  be  pleaded  and  proved  on  his  part. 
Wallace*.  McConnell,  13  Peters,  136. 

468 


JUNE  TERM,  1838.  445 

Butterfield  r.  Kinzie. 

J.  BUTTEKFIELD  and  JAMES  H.  COLLINS,  for  the  plaintiff  in 
error. 

JAMES  GRANT,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
The  only  question  presented  for  adjudication  by  the  record 
in  this  cause,  is  whether  or  not  in  an  action  against  the  maker 
of  a  promissory  note,  or  the  acceptor  of  a  bill,  paya- 
ble at  a  specified  *  place,  the  plaintiff  is  bound  to  aver  [*446] 
and  prove  a  demand  of  payment  at  the  time  and  place 
specified,  to  maintain  the  action.  The  negative  of  this  propo- 
sition is  maintained  by  the  plaintiff  in  error,  and  the  affirma- 
tive by  the  defendant.  Without  going  into  an  examination  of 
the  numerous  decisions  bearing  upon  the  question,  or  the  rea- 
sons advanced  in  support  of  those  decisions,  this  Court  has  no 
hesitation  in  saying,  that  the  weight  and  current  of  authorities 
fully  sustain  the  position  assumed  by  the  plaintiff.  (17  Johns. 
248  ;  4  Johns.  183;  11  Wheat.  171  ;  6  Peters'  Cond.  R  257; 
1  Campbell  K  P.  423 ;  2  do.  498;  8  Cowen,  271 ;  3  Wen- 
dell, 1 ;  Bailey  on  Bills,  203 ;  4  Littell,  225.)  It  is  not  a 
question  of  first  impression,  but  one  which  has  been  so  re- 
peatedly decided,  that  this  Court  does  not  feel  itself  called 
upon  to  examine  the  reasons  upon  which  former  decisions  have 
been  maintained.  The  Circuit  Court  having  decided  in  favor 
of  the  defendant,  the  decision  must  be  reversed,  and  the  cause 
remanded,  with  directions  to  that  Court  to  overrule  the  de- 
murrer, and  proceed  to  a  trial  of  the  cause  upon  its  merits. 

Judgment  reversed. 

469 


DECISIONS 


SUPREME  COURT 


OP  THE 


STATE  OF  ILLINOIS, 


DELIVERED 


DECEMBER   TERM,  1838,  AT  VANDALIA. 

BENJAMIN  GODFREY,  WINTHROP  S.  OILMAN,  SIMEON 
RYDER,  and  CALEB  STONE,  plaintiffs  in  error,  v. 
NATHANIEL  BUCKMASTER,  defendant  in  error. 

Error  to  Madison. 

PLEADING — JOINDER. — There  can  be  no  impropriety  in  including1  several 
notes  in  one  count  in  a  declaration,  where  each  of  the  notes  is  of  precisely 
the  same  description. 

PRACTICE — JUDGMENT  ON  DEMURRER. — It  is  not  error  to  render  final 
judgment  upon  demurrer.  If  a  party  wishes  to  answer  over,  he  should  with- 
draw his  demurrer. 

ON  the  22d  day  of  July,  1837,  Nathaniel  Buckmaster  in- 
stituted a  suit  in  assumpsit^  in  the  Madison  Circuit  Court, 
against  the  plaintiffs  in  error  and  one  John  B.  Glover,  upon 
six  promissory  notes,  made  by  the  plaintiffs  in  error,  and  pay- 
able to  the  order  of  the  defendant  in  error,  Buckmaster.  Proc- 
ess was  executed  upon  all  except  Glover. 

The  declaration  contains  but  one  count,  and  is  as  follows: 
"  In  the  Circuit  Court  of  Madison  county,  of  August  term, 
Anno  Domini  1837. 

CITED:  Special  plea  to  each  cause  of  action.  27  111.  482.  Final  judg- 
ment on  demurrer,  no  error  when.  3  Scam.  53,  175. 

470 


DECEMBEK  TERM,  1838.  447 

Godfrey  et  al.  v.  Buckmaster. 

State  of  Illinois,  I 
Madison  County,  (  ss' 

Benjamin  Godfrey  and  "Winthrop  S.  Oilman,  trading  and 
doing  business  in  name  of  Godfrey.  Gilmaii  &  Co.,  Simeon 
Ryder  and  Ca^b  Stone  and  John  B.'Glover,  trading  and  doing 
business  in  name  of  Stone  &  Co.,  were  summoned  to  answer  Na- 
thaniel Bnckmaster,  of  a  plea  of  trespass  on  the  case  on  promises, 
etc.,  and  thereupon  the  said  plaintiff,  by  his  attorneys, 
Martin  and  *Murdock,  complains,  for  that  whereas  the  [*4±8] 
said  defendants,  at  A  Hon.  to  wit,  at  the  county  afoi  ecald, 
on  the  seventeenth  day  of  January,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirty-seven,  made  their  six  cer- 
tain promissory  notes,  in  writing,  and  thereto  subscribed  their 
proper  handwritings,  the  date  whereof  is  the  day-  and  year 
aforesaid,  by  one  of  which  said  promissory  notes,  the  said  de- 
fendants on  or  before  the  eighteenth  day  of  May  tlien  next, 
promised  to  pay  to  the  order  of  Nathaniel  Buckmaster,  one 
thousand  dollars,  for  value  received,  with  interest  at  the  rate 
of  ten  per  centum  after  due  and  payable.  By  another  of  said 
promissory  notes,  the  said  defendants  on  or  before  the  eight- 
eenth day  of  May  then  next,  promised  to  pay  to  the  order  of 
Nathaniel  Buckmaster,  one  thousand  dollars  for  value  received, 
with  interest  at  the  rate  of  ten  per  centum  per  annum,  from 
the  said  eighteenth  day  of  May,  eighteen  hundred  and  thirty- 
seven.  By  another  of  said  promissory  notes,  the  said  defend- 
ants, on  or  before  the  eighteenth  day  of  May  then  next, 
promised  to  pay  to  the  order  of  N.  Buckmaster,  one  thousand 
dollars  for  value  received,  with  interest  thereon  at  the  rate  of 
ten  per  centum  after  the  said  note  becomes  due  and  payable. 
By  another  of  the  said  promissory  notes,  the  said  defendants, 
on  or  before  the  eighteenth  day  of  May  then  next,  promised 
to  pay  to  the  order  of  Nathaniel  Buckmaster,  .one  thousand 
dollars  for  value  received,  with  interest  at  the  rate  of  ten  per 
centum  per  annum,  from  the  said  eighteenth  day  of  May  last. 
By  another  of  said  promissory  notes,  the  i-aid  defendants,  on 
or  before  the  eighteenth  day  of  May  then  next  ensuing,  prom- 
ised to  pay  to  the  order  of  Nathaniel  Buckmaster,  one  thou- 
sand dollars  for  value  received,  with  interest  at  the  rate  of  ten 
]  er  centum  per  annum,  from  and  after  the  said  eighteenth 
day  of  May  last.  By  another  of  said  promissory  notes,  the 
said  defendants,  on  or  before  the  eighteenth  day  of  May  then 
next  ensuing,  promised  to  pay  to  the  order  of  Nathaniel  Buck- 
master,  one  thousand  dollars  for  value  received,  with  interest 
at  the  rate  of  ten  per  centum,  from  and  after  the  said  eight- 
eenth day  of  May  aforesaid. 

Nevertheless,  the  eaid  defendants,  not  regarding  their  sev- 

471 


448  VANDALIA. 


Godfrey  et  al.  v.  Buckmaster. 


eral  promises  and  undertakings  aforesaid,  in  form  aforesaid 
made,  not  regarding  the  said  several  promissory  notes,  or  any 
or  either  of  mem,  or  the  said  several  sums  of  money,  or  any 
part  thereof,  to  the  said  Nathaniel  Buckmaster,  the  said  plaint- 
iff, have  not  paid,  or  any  or  either  of  them,  or  any  part 
thereof,  although  the  same  to  pay,  they,  the  said  defendants, 
have  been  often  thereto  requested,  to  wit,  at  the  county  afore- 
said, but  the  same  to  pay  have  hitherto  wholly  neglected  and 
refused,  and  still  do  refuse,  to  the  damage  of  the  said  plaintiff, 
ten  thousand  dollars,  therefore  he  brings  suit,  etc. 

MAKTIN  &  MUKDOCK, 

Att'ys  of  Plff." 

[*449]  *At  the  August  term  of  said  Court,  1837,  the  Hon. 
Sidney  Breese  presiding,  the  plaintiffs  in  error,  by 
Cowles  and  Krum,  their  attorneys,  filed  their  demurrer  to  the 
foregoing  declaration,  "  And  for  cause  of  demurrer  say,  that 
there  is  duplicity  in  said  declaration  of  the  plaintiffs  in  this, 
there  are  six  distinct  causes  of  action  embraced  and  included  in 
the  same  count ;  2d,  there  are  several  promises  and  undertak- 
ings alleged  in  one  count." 

To  the  demurrer  there  was  a  joinder,  and  the  Court  over- 
ruled the  demurrer,  and  gave  judgment  for  the  defendant  in 
error,  (the  clerk  assessing  the  damages,)  for  the  sum  of  §6,450 
against  the  plaintiffs  in  error. 

To  reverse  this  judgment,  the  plaintiffs  in  error  brought 
their  cause  to  this  Court,  and  assigned  for  error  the  overruling 
of  the  demurrer,  and  giving  judgment  for  the  defendant  in 
error.  There  was  a  joinder  in  error  by  Buckmaster. 

A.  COWLES  and  J.  M.  KRUM,  for  the  plaintiffs  in  error,  re- 
lied upon  the  following  points  and  authorities : 

1.  That  although  the  plaintiff  could  join  the  several  causes 
of  action  in  one  declaration,   yet,   being   several,  they  could 
only  be  in  separate  counts.     Comyn's  Digest,  title  Action,  C  ; 
Bac.  Abr.  Pleas  C.  B.  3,  Actions  in  General  C  ;  1  Term  276  ; 
2  Wilson,  319  ;  1  Ib.  252 ;  2  Saunders,  117  c ;  Gould's  Plead- 
ings, Ch.  4,  §§  80,  81  ;  13  Johns.  484-5  ;  2  Saunders,  123  a ;  3 
Conn.  1 ;  15  Johns.  432. 

2.  The  demurrer  of  the  defendants  below  reached  the  fault 
or  duplicity  in  the  declaration  and  should  have  been  sustained. 
Although  the  different  causes  of  action  are  of  the  same  nat- 
ure, they  can  not  be  joined  in  the  same  count,  the  action  be- 
ing to  enforce  a  single  right  of  recovery.     Gould's  Pleadings, 
Ch.  4,  §§  99,  100,  103. 

3.  The  judgment  of  the  Court  on  the  demurrer  should  have 

472 


DECEMBER  TEEM,  1838.  449 

Godfrey  et  al.  r.  Buckimster. 

been  interlocutory  and  not  final,   such   being  the  settled  prac- 
tice of  the  courts  in  Illinois. 

WM.  MAKTIN,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  assumpsit  brought  in  the  Madison 
Circuit  Court. 

The  plaintiff  counted  on  six  several  promissory  notes,  made 
payable  at  the  same  time,  for  the  sum  of  one  thousand  dollars 
each,  and  included  the  whole  of  the  notes  in  a  single  count 
of  the  declaration.  The  count  describes  the  notes  according 
to  their  tenor  and  legal  effect,  and  assigns  the  breach  of  the 
promise  to  pay  as  to  each  and  to  the  whole  of  the  notes. 

To  this  declaration  the  defendants  specially  demurred,  and 
assigned  for  cause,  a  want   of   form   by  joining  the 
notes  in  the  *same  count.     The  Circuit  Court,  hold-    [*450] 
ing  the  demurrer  not  well  taken,  overruled  it,  and  ren- 
dered final  judgment  for   the    plaintiff.     A   writ  of  error  has 
been  prosecuted,  and  it  is  now  assigned   for  error — First,  that 
the  declaration  contains  different  and  distinct  causes  of  action 
in  one  count,  and  that   this   count   is  therefore  double ;  Sec- 
ondly, that  the  judgment  on  the  demurrer  should  have  been 
respondeas  ouster. 

It  is  now  argued  by  the  counsel  for  the  plaintiffs  in  error, 
that  although  the  several  and  distinct  promises  of  the  defend- 
ants could  be  joined  in  one  action,  yet  the  promises  being  se\- 
eral  and  distinct  they  should  have  been  declared  on  in  separate 
and  distinct  counts. 

To  this  position,  it  may  be  remarked,  that  the  present  case 
is  not  one  of  a  misjoinder  of  causes  of  action  so  different  in 
their  nature  as  to  fall  within  the  rule  which  would  render  a 
declaration  bad  because  of  such  joinder  ;  nor  can  we  perceive 
how  it  is  a  cause  even  for  special  demurrer  for  want  of  form. 
The  count  is  no  way  defective  in  its  form,  but  it  is  paid  to 
be  defective  in  substance,  because  it  combines  the  six  notes  in 
the  description  thereof,  and  has  assigned  the  breach  of  non- 
payment of  all  in  the  same  count.  And  it  is  further  insisted 
that  each  note  should  have  been  set  out  in  different  counts, 
and  that  not  being  done  the  declaration  is  double. 

The  cause  assigned  in  the  special  demurrer  and  the  argu- 
ment used  to  support  it  are  inconsistent.  One  alleges  the  want 
of  form  as  the  defect,  and  the  argument  charges  the  act  of 
joining  the  notes  in  the  description  of  them  in  the  count  as 
matter  of  substance,  and  insists  on  this  ground  that  this  fact 
sustains  the  want  of  form  alleged. 

473 


450  .VANDALIA. 

Godfrey  et  al.  v.  Buckmaster. 

Tliero  is  no  misdercrij.tion,  no  incongruity  or  want  of  accu- 
racy or  certainty  in  the  count  which  is  even  formally  perfect : 
and  hence  the  cause  of  demurrer  assigned  is  not  established. 
We  are  entirely  satisfied  that  no  valid  objection  can  be  raised 
to  the  count. 

The  six  notes  are  identical  with  each  other,  being  for  the 
same  sum,  of  the  same  date,  and  payable  at  the  same  time,  and 
might  well  be  joined  in  the  same  count  most  conveniently, 
without  ambiguity  or  perplexity.  Indeed  it  is  most  desirable, 
where  it  can  be  done  without  producing  confusion,  when  the 
causes  of  action  are  of  the  same  nature  and  may  be  clearly  set 
forth  together,  that  this  mode  of  declaring  should  be  adopted. 
No  possible  embarrassment  can  arise,  for  the  defendant  may 
avail  himself  of  every  defense.  He  may  plead  specially  to 
each  note  separate  matters  of  defense,  or  lie  may  plead  the 
general  issue  and  give  special  matter  in  evidence  in  defense  to 
any  or  to  all  the  notes.  Suppose,  instead  of  the  six  notes, 
there  had  been  but  one  payable  by  installments  on  six 
[*451]  different  days,  would  it  be  *objected  that  the  prom- 
ises and  breaches  could  not  be  set  forth  in  the  same 
count  ?  We  apprehend  not.  The  promises  then  being  on 
separate  pieces  of  paper  will  not  surely  change  the  rule  nor 
the  reason  of  it,  nor  can  the  count  be  double  because  it  de- 
scribes several  notes.  The  description  of  the  six  notes  in  sep- 
arate counts  would  have  been  no  more  clearly  nor  accurately 
described  than  they  have  been  in  one,  and  the  useless  verbiage 
which  would  in  framing  them  have  to  be  observed  is  thus 
desirably  avoided. 

The  authorities  cited  by  the  counsel  for  the  plaintiffs  in 
error,  and  particularly  those  in  Gould's  Pleading,  are  far  from 
sustaining  the  grounds  assumed  in  support  of  the  writ  of  error, 
while  those  in^the  4th  and  13th  Johnson's  Reports,  clearly  sus- 
tain the  Court.  In  our  system  of  practice  it  is  of  infinite  im- 
portance to  introduce  precision  and  conciseness ;  and  what- 
ever tends  to  dispense  with  prolixity  and  useless  recapitulation, 
should  be  encouraged. 

On  the  second  point  the  practice  is  plain.  The  judgment 
in  chief  was  correct.  If  the  defendants  wished  to  plead  to  the 
merits  of  the  action,  they  should  have  withdrawn  their  de- 
murrer, and  applied  to  the  Court  to  answer  over.  This  doubt- 
less would  have  been  granted.  It  could  not  compel  the  with- 
drawal of  the  demurrer;  and  as  the  defendants  chose  to  stand 
by  it,  the  Circuit  Court  could  render  no  other  than  a  final 
judgment  on  the  pleadings  as  they  stood. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

474 


DECEMBER  TERM,   1838.  451 

Linn  r.  Buckingham  et  al. 


WILLIAM  LTNN,  plaintiff  in  error,  v.  CHARLES  BUCK- 
INGHAM and  \VrOLCOTT  HUNTINGTOX,  defendants  in 
error. 

Error  to  Fayctte. 

VARIANCE — PLEADING — PHOOF. — In  an  action  upon  a  promissory  note 
against  the  maker,  the  declaration  described  the  note  as  made  by  William 
Linn.  The  note  produced  in  evidence  was  signed  "  Wni.  Linn:"  Held, 
there  was  no  variance,  and  that  the  proof  was  sufficient. 

SECURITY  FOR  COSTS — PARTNERSHIP. — It  is  no  objection  to  a  security 
for  costs  that  it  is  signed  by  a  firm  in  their  co-partnership  name. 

Where  a  security  for  costs  was  written  upon  the  back  of  the  declaration 
in  a  cause,  but  the  title  of  the  Court  did  not  appear  in  the  same:  Held, 
that  it  was  a  sufficient  compliance  with  the  statute. 

NOTE — DEFENSE — VERIFICATION. — A  defendant  can  not  deny  the  execu- 
tion of  a  promissory  note,  upon  which  he  is  sued,  or  dispute  its  genuineness, 
unless  he  verify  his  denial  by  affidavit. 

THIS  cause  was  tried  at  the  October  term,  1838,  of  the 
Fayette  Circuit  Court,  before  the  Hon.  Sidney  Breese.  Judg- 
ment was  rendered  for  the  defendants  in  error. 

*Upon  the  declaration,  tlie  following  security  for     [*452] 
costs  was  indorsed : 
"  Charles  Buckingham  and } 
Wolcott    Iluntington   \.  > 
William  Linn.  ) 

We  hereby  enter  ourselves  as  security  for  costs  in  this  en- 
titled cause,  and  acknowledge  ourselves  bound  to  pay  all  costs 
that  may  accrue,  either  to  the  opposite  party,  or  to  any  of  the 
officers  of  this  Court,  in  pursuance  of  the  laws  of  the  State  of 
Illinois. 

COWLES  &  KKUM." 

L.  DAVIS  and  F.  FORMAN,  for  the  plaintiff  in  error,  cited  R. 
L.  170,  §  23,  (Gale's  Stat.  199,)  1*55-6,  §  1  (Gale's  Stat.  195); 
Printed  Opinions  288,  (ante  3b8,)  201,  (ante  252,)  114  (ante 
165);  13  Johnson,  486. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action' of  assuinpsit  on  a  promissory  note.  The 
decoration  is  in  the  usual  form,  with  the  money  counts,  to 
which  the  defendant  pleaded  non-assumpsit  The  defendant, 
before  pleading  in  the  Circuit  Court,  moved  the  Court  to  dis- 
miss the  cause  from  the  docket,  because  the  plaintiffs  were 

"CITED:  Security  for  cost*.     1  Scam.  691';  3  Id.  184.     When  denial  must 
be  under  oath.    16  111.  270. 

47o 


452  VANDALIA. 


Linn  v.  Buckingham  et  id. 


non-residents  at  the  time  of  the  commencement  of  the  action, 
and  had  not  h'leda  sufficient  bond  for  the  payment  of  costs,  in 
conformity  to  the  provisions  of  the  statute  in  such  cases. 
Proof  of  non-residence  was  made,  and  a  bond,  it  appears  from 
the  record,  was  indorsed  on  the  declaration,  signed  in  the 
partnership  name  of  the  attorneys.  The  Circuit  Court  refused 
the  application ;  and  the  defendant's  counsel  excepted.  The 
cause  was  then  submitted  to  the  Court  for  trial,  without  the 
intervention  of  a  jury  ;  and  the  plaintiffs,  having  proved  the 
co-partnership,  produced  in  evidence  a  note  corresponding  to 
the  one  described  in  the  declaration,  signed  "  Win.  Linn,"  and 
there  rested  their  case.  "Whereupon  the  defendant  moved  for 
a  nonsuit,  because  the  plaintiffs  had  failed  to  prove  that  the 
note  offered  in  evidence,  signed  "  Wm.  Linn,"  was  executed 
by  William  Linn. 

Two  grounds  are  now  assigned  for  error.  First,  the  re- 
fusal of  the  Court  to  dismiss  the  suit  for  the  alleged  insuffi- 
ciency of  the  bond  for  costs ;  Secondly,  the  refusal  of  the 
Court  to  nonsuit  the  plaintiffs  upon  the  evidence  produced. 

Upon  the  first  point  it  is  to  be  remarked,  that  the  record 
shows  a  bond  written  on  the  declaration  entitled  in  the  cause, 
and  substantially  in  the  form  prescribed  by  the  act  requiring 
security  for  costs  to  be  given  in  certain  cases.  It  is  urged, 
that  because  the  entitling  of  the  cause  does  not  state  it  to  be 
in  any  Court,  it  can  not  relate  to  the  action  described 
[*453]  in  the  declaration  ;  *and  that  therefore  the  bond  is 
not  in  conformity  to  the  law.  We  do  not  perceive 
the  force  of  the  objection.  On  the  contrary,  it  would  be  do- 
ing violence  to  a  reasonable  interpretation  of  the  facts  of  the 
case,  to  suppose  that  the  security  given  related  to  any  other 
cause  than  the  one  described  in  the  decoration,  and  corre- 
sponding with  the  one  entitled  in  the  bond  for  security  of  costs. 
The  bond  is  entirely  sufficient  and  perfect.  The  further  ob- 
jection, that  it  is  signed  in  the  co-partnership  name  of  the 
attorneys,  omitting  their  Christian  names,  seems  not  to  be  a 
sufficient  objection  to  its  validity.  The  proceedings  to  be  had 
to  enforce  the  performance  of  the  condition  of  the  bond,  might 
be  rendered  as  effectual  as  if  each  had  subscribed  his  name  at 
full  length.  The  second  objection  can  not  be  sustained.  By 
the  12th  section  of  the  "  Act  concerning  Practice  in  Courts 
of  Law,"  (K.  L.  489  ;  Gale's  Stat.  531,)  approved  29th  of 
January,  1827,  it  is  declared,  "  That  no  person  shall  be  per- 
mitted to  deny  on  trial,  the  execution  of  any  instrument  in 
writing,  whether  sealed  or  not,  upon  which  any  action  may 
have  been  brought,  unless  such  person  so  denying  the  tame, 
shall,  if  defendant,  verify  his  plea  by  affidavit." 

476 


DECEMBER  TERM,  1838.  453 

Hunter  et  al.  v.  The  People. 

By  the  practice  under  this  section  of  the  act,  it  was  unneces- 
sary for  the  plaintiffs  to  prove  the  execution  of  the  note  ;  and 
having  shown  the  existence  of  the  co-partner  ship,  to  whom  the 
note  _was  payable,  the  defendant  could  not  controvert  its 
validity,  or  dispute  its  genuineness. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

Old  Note.  See  Kettelle  v.  Wardell,  decided  Dec.  term,  1839,  post;  War- 
nock  v.  Russell,  ante  383;  Seward  r.  Wilson,  and  note,  ante  192. 

See,  also,  Vance  and  Breese  v.  Funk  et  al.,  decided  June  term,  1840, 
where  it  was  held  that  the  execution  of  a  note  signed  J.  E.  Vance  &  Co., 
could  not  be  denied  under  a  plea  of  the  general  issue  unaccompanied  by  an 
affidavit  of  its  truth.     2  Scam. 
Variances.     Ante  193,  206,  272,  332;  Peyton  et  al.  v.  Tappan,  ante  388. 


WILLIAM  HUNTER,  BARTHOLOMEW  WHALEN,  and 
JAMES  WHALEN,  plaintiffs  in  error,  v.  THE  PEOPLE 
OF  THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Edgar. 

CHANGE  OP  VENUE — TRANSMISSION  OF  TRANSCRIPT  AND  PAPERS. — Where 
A,  B,  C  and  D  were  jointly  indicted  in  the  Edgar  Circuit  Court,  and  A 
alone  moved  for  and  obtained  a  change  of  venue  to  the  Clark  Circuit  Court, 
without  the  consent  of  the  others,  where  he  was  tried;  and  after  his  trial, 
the  indictment,  without  any  order  of  Court,  was  returned  to  the  Edgar 
Circuit  Court,  and  B,  C  and  D  called  upon  to  plead  to  the  same: 
Held  that  the  *proceedings  were  regular,  and  that  the  indictment  [*454J 
as  to  B,  C  and  D  must  be  considered  as  remaining  under  the  control 
of  the  Edgar  Circuit  Court,  and  that  no  trial  could  be  had  elsewhere.  The 
Circuit  Court  of  Clark  county  should  have  ordered  the  original  indictment  to 
be  returned  to  Edgar  county,  and  retained  a  copy  thereof  upon  its  own 
records.* 

O.  B.  FICKLIN,  for  the  plaintiffs  in  error. 

A.  C.  FRENCH,  State's  Attorney,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  case  is  submitted  on  the  following  agreed  state  of  facts. 

The  defendants  were  jointly  indicted  at  the  April  term  of 

the  Circuit  Court  of  Edgar  county,  1837,  for  a  not.      At  the 

September  term  of  the  same  year,  Andrew   Hunter,  one  of 

the  defendants,  applied  for  a  change  of  venue  for  himself 

s  Change  of  venue— Transmission  of  transcript  and  papers.  See  Starr  & 
C.  111.  Stat.  Ch.  146,  If  28.  See,  also.  Smith  r.  People,  36  111.  290;  Noecker 
v.  People,  91  111.  494;  Goodhue  v.  People,  94  111.  37. 

477 


454  VANDALIA. 


Hunter  et  al.  v:  The  People. 


only,  which  was  ordered  and  the  indictment,  together  with  the 
other  pipers  in  the  cause,  were  transmitted  to  the  Clark  Cir- 
cuit Court,  where  Andrew  Hunter  was  tried  at  the  November 
term,  1837.  After  the  trial  in  the  Clark  Circuit  Court,  the 
same  indictment  on  which  Andrew  Hunter  was  tried  was 
brought  back  to  the  Edgar  Circuit  Court,  without  any  order 
of  the  Court  therefor;  and  William  Hunter,  Bartholomew 
Whalen  and  James  Whalen  were  called  to  plead  to  the  indict- 
ment. It  is  now  submitted  by  the  attorney  for  the  People, 
and  the  counsel  for  the  defendants,  who  did  not  join  in  the 
change  of  venue,  whether  or  not  the  Circuit  Court  of  Edgar 
county  was  ousted  of  its  jurisdiction  over  them,  by  the  change 
of  venue  to  Clark  Circuit  Court. 

In  the  case  of  Clark  v.  Tlie  People,  decided  in  this  Court 
in  1833,  (ante,  117,)  it  is  said,  "It  is  argued  that  if  the  venue 
should  be  changed  on  the  application  of  one  of  several  defend- 
ants indicted  jointly,  that  it  would  be  difficult  if  not  impossible 
to  try  the  others,  as  the  indictment  would  have  to  be  sent  to 
the  adjoining  county  with  the  accused."  The  only  point  de- 
cided in  that  case  was,  the  right  of  one  of  several  defendants 
indicted  jointly,  to  a  change  of  venue,  which  the  Circuit 
Court  had  refused;  which  judgment  was  reversed. 

It  is  not  to  be  disguised  that  the  act  allowing  a  change  of 
venue,  in  regard  to  criminal  offenses,  is  extremely  defective  ; 
and  particularly  as  to  the  disposition  which  shall  be  made  of 
the  other  defendants,  after  a  change  of  venue,  and  trial  shall 
have  been  had  as  to  one  or  more  of  them.  No  provision  is 
made  for  the  disposition  of  the  indictment  by  the  Court  to 
which  it  is  transmitted,  after  the  change  of  venue  is  awarded, 
and  its  final  action  has  been  had  on  the  party  who  sought  the 
change.  The  policy  of  the  act,  in  its  present  shape,  may  well 
be  doubted  ;  and  however  just  the  principles  on  which  it  has 
been  founded,  from  the  means  it  affords,  there  can  be 
[*455]  no  doubt  that  it  is  often  *resorted  to,  and  used  in 
many  cases,  for  the  prostration  of  the  criminal  justice  of 
the  country.  Its  terms  are  too  general  and  indefinite  ;  and 
no  corroborating  facts,  or  the  details  of  circumstances,  to  es- 
tablish the  truth  of  the  cause  for  the  change  sworn  to  by  the 
defendant,  to  sustain  his  belief,  is  required. 

If  he  swears,  in  his  mere  belief,  that  any  one  of  the  causes 
named  in  the  statute  exists,  no  matter  how  or  by  what  means 
or  information  he  has  arrived  at  the  conclusion,  or  how  im- 
probable or  untrue  it  may  appear,  no  discretion  is  left  to  the 
Court  to  determine  the  justice  of  the  application.  The  change 
must  be  awarded.  The  present  case  must  be  decided  on  its 
own  merits.  The  Court,  in  its  own  opinion,  (in  the  case  of 

478  ' 


DECEMBER  TEEM,  1S3S.  455 

Hunter  et  al.  r.  The  People. 

Clark  v.  The  People,)  merely  recapitulated  the  arguments  of 
counsel,  without  at  all  admitting,  much  less  deciding,  that  a 
defendant^  a  case  like  the  present  could  not  be  properly  and 
legally  tried,  notwithstanding  the  embarrassments  suggested. 

The  case,  in  the  agreement  of  submission,  admits  that  the 
indictment  was  returned  to  the  Circuit  Court  of  Edgar  without 
an  order  ;  and  on  looking  into  the  record,  it  does  not  appear 
how  the  indictment  was  remanded  or  returned.  The  on'y 
question  then  to  be  determined  under  the  case  made  is, 
whether  the  Circuit  Court  of  Edgar  county  ever  lost  jurisdic- 
tion of  the  cause,  as  relates  to  the  three  defendants  who  did 
not  desire  a  change  of  venue. 

It  must  be  conceded  that  they  cou]d  not  be  tried  in  the  Cir- 
cuit Court  of  Clark,'  to  which  the  venue  of  the  cause  in  regard 
to  the  other  defendant,  without  their  consent,  was  changed  ; 
and  indeed  it  might  well  be  questioned  whether  even  by  con- 
eent  the  Circuit  Court  of  Clark  could  take  cognizance  of  the 
case.  The  indictment,  for  all  legal  purj.oees,  must  be  consid- 
ered as  still  remaining  under  the  control  of  the  Circuit  Court 
of  Edgar  county  ;  and  no  trial  could  be  had  elsewhere.  The 
Circuit  Court  of  Clark  should  have  entered  an  order  causing 
the  indictment  to  be  returned  to  the  Circuit  Court  of  Edgar, 
retaining  a  copy  on  its  records  ;  but  although  this  was  not  done, 
it  does  not  follow  that  the  Court  of  Edgar  was  ever  ousted  of 
its  jurisdiction,  as  to  the  three  other  defendants ;  and  as  the 
indictment  \vas  returned  to  the  Court  where  it  was  found,  it 
is  not  considered  important,  whether  it  was  done  in  pursuance 
of  a  formal  order  of  the  Clark  Circuit  Court,  on  its  records, 
or  by  the  direction  of  the  Court  verbally  to  its  clerk.  It  was 
properly  returned,  although  the  law  is  silent  as  to  the  manner 
of  the  return.  If  this  is  not  regular  and  sanctioned  by  legal 
rule,  public  justice  might  be  defeated  in  numerous  instances. 
No  injustice  is  done  the  defendants.  They  are  deprived  of  no 
right  whatever  ;  nor  is  any  obstacle  or  inconvenience  created 
thereby. 

As  the  statute,  allowing  the  change  of  venue,  is 
silent  as  to  the  *future  disposition  of  the  cause,  [*-±5P>] 
after  trial  of  those  who  have  sought  the  change  of 
venue,  it  might  equally  be  said,  that  the  Court  to  which  the 
indictment  is  sent  has  no  power  to  remand  the  indictment ; 
and  if  so  there  would  be  a  complete  failure  of  justice.  No 
principle  of  decision  should  be  adopted  unless  it  is  just  and 
reasonable  in  its  character ;  and  where  the  contrary  would 
manifestly  be  the  result,  it  ought  to  be  avoided,  unless  the 
grounds  of  inevitable  necessity  interpose  another  or  a  modified 
course.  It  is  then  inconsistent  with  the  reason,  the  right  and 


456  VANDALIA. 


Duncan  v.  The  People. 


the  justice  of  the  case,  that  the  defendants  should  escape  a 
trial  for  the  offense  charged,  by  the  act  of  their  co-defendant, 
in  taking  the  change  of  venue;  and  we  can  perceive  no  suffi- 
cient reason  for  arresting  the  judgment  rendered  in  this 
cause. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


JOHN  DUNCAN,  plaintiff  in  error,  v.  THE  PEOPLE  OF 
THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Clinton. 

INDICTMENT — CAPTION. — That  portion  of  an  indictment  which  recites 
the  choosing,  selecting  and  swearing  of  the  grand  jury,  according  to  the  form 
prescribed  in  §  152  of  the  Criminal  Code,  is  not  a  count  or  a  portion  of  a 
count  of  the  indictment;  it  is  only  the  caption. 

SAME — MOTION  TO  QUASH." — A  motion  to  quash  an  indictment  containing 
two  counts,  which  is  sustained  as  to  the  first,  and  overruled  as  to  the  second, 
does  not  affect  the  caption  of  the  indictment. 

Where  the  second  count  in  an  indictment,  the  first  having  been  quashed 
because  it  did  not  state  the  presentment  to  be  upon  oath,  recited  that  "  The 
grand  jurors  aforesaid,  chosen,  selected  and  sworn  as  aforesaid,  in  the  name 
and  by  the  authority  of  the  People  of  the  State  of  Illinois  aforesaid,  on 
their  oaths  aforesaid,  do  further  present:"  Held,  that  the  count  was  suffi- 
cient. 

THE  following  points  were  made  by  the  counsel  for  the 
plaintiff  in  error : 

1.  Every  count  must  be  perfect  in  itself,  or  good  by  refer- 
ence to  a  perfect  count.     Stark.  331-2  ;  1  Chitty  Crim.  Law, 
167,  205. 

2.  If  the  Court  was  right  in  quashing  the  first  count,  as  the 
second  count  referred  to  the  first,  the  whole  indictment  should 
have  been  quashed.     13  Johns.  484-5  ;  1  Chitty  Crim.  Law, 
247,  249. 

3.  For  the  same  reason  judgment  should  have  been  arrest- 
ed 

A.  COWLES,  J.  M.  KRUM  and  J.  REYNOLDS,  for  the  plaintiff 
in  error. 

[*457]        *GEORGE  "W.  OLNEY,  Attorney  General,  for  the  de- 
fendants in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

480 


DECEMBER  TERM,  1838.  457 

Duncan  r.  The  People. 

This  was  an  indictment  containing  two  counts  ;  the  first,  for 
an  assault  with  intent  feloniously  to  kill  and  murder;  the  sec- 
ond, for  an  assault  with  intent  to  do  a  great  bodily  injury,  with- 
out any  considerable  pro  vocation,  contrary  to  the  statute  in 
such  cases  provided.  A  motion,  before  pleading,  was  made  by 
the  defendant,  to  quash  the  indictment,  for  defects  appearing 
on  its  face.  The  Circuit  Court,  on  the  motion,  quashed  the  first 
count,  and  refused  the  application  as  to  the  second. 

The  defendant  was  tried  on  the  second  count,  and  convicted. 
He  then  moved  in  arrest  of  judgment,which  motion  the  Circuit 
Court  overruled,  and  rendered  final  judgment  on  the  conviction. 
A  writ  of  error  has  been  prosecuted  in  this  Court,  and  it  is  now 
assigned  for  error — First,  That  the  Circuit  Court  ought  to  have 
arrested  the  judgment  in  the  cause,  because  as  the  first  count 
did  not  show  a  presentment  on  oath,  and  being  bad  and  quashed 
by  the  Court,  the  second  count  being  only  good  by  reference 
to  the  first,  the  second  should  also  have  been  quashed.  Sec- 
ondly, Because  the  first  count  being  stricken  out,  there  is  no 
averment  of  the  impaneling,  selecting  and  swearing  of  the 
grand  jury;  and  therefore  the  second  count  is  bad. 

In  considering  the  second  objection,  it  will  be  well  to  deter- 
mine what  was  stricken  out,  on  the  motion  to  quash  the  in- 
dictment. 

That  portion  of  the  indictment  which  recites  the  choosing, 
selecting  and  swearing  of  the  grand  jury,  according  to  the  form 
provided  in  §  152  of  the  Criminal  Code  of  this  State,  in  which 
it  is  described  as  the  commencement  of  the  indictment,  can  not 
be  considered  as  the  count  ittelf,  or  a  portion  thereof.  It  is  but 
the  caption  prescribed  by  the  act. 

The  facts  narrated  alter  this  caption,  or  commencement  of 
the  indictment,  is  the  count ;  and  this  alone,  we  consider,  was 
stricken  out  by  the  Court,  on  the  motion  to  quash ;  and  con- 
sequently the  second  count  would  be  good  by  reference  to  this 
caption. 

Apart,  however,  from  these  considerations,  the  first  objection 
can  not  be  sustained,  because  the  second  count  is  perfect  in  itself 
without'  reference  to  the  first.  That  count  recites  that,  "  The 


age,  then  the  second  count  is,  without  any  reference  whatever, 
entirely  sufficient  in  itself;  and  shows  a  presentment  on  the  oath 
of  the  jurors,  conformably  to  strict  form.    Without, 
however,  Considering  it  as  surplusage,  the  count  is     [*45S] 
not  vitiated  by  the  use  of  the  word  aforesaid. 


VOL.  I.-31 


4;.S  VAtfDALIA. 


The  People  v.  Pearson. 


Neither  of  the  grounds  assumed  as  error  being  sufficient, 
the  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS,  ex  relatione, 
WILLIAM  TEAL,  v.  JOHN  PEARSON,  Judge  of  the 
Cook  Circuit  Court. 

Application  for  a  writ  of  Mandamus. 

PLEADING — DECLABATION  ON  NOTE — PRACTICE.— When  an  action  is 
brought  upon  a  promissory  note,  and  a  declaration  is  filed  containing  a  spe- 
cial count  on  the  note,  and  the  common  counts,  and  a  copy  of  the  note  is  filed 
with  the  declaration,  it  is  unnecessary  to  file  an  account  in  order  to  give  the 
note  in  evidence  under  the  common  money  counts. 

Where  the  Circuit  Court  granted  a  continuance  because  an  account  was 
not  filed  with  a  declaration  upon  a  promissory  note — which  also  contained 
the  usual  common  counts — although  the  plaintiff  offered  to  file  a  stipulation 
that  he  claimed  to  recover  only  upon  the  note  which  was  filed  with  the  dec- 
laration ten  days  before  the  session  of  the  Court,  unless  the  plaintiff  would 
strike  the  common  counts  out  of  his  declaration,  the  Supreme  Court  granted 
a  peremptory  writ  of  mandamus  to  the  judge  of  the  Circuit  Court,  com- 
manding the  Court  to  proceed  with  the  cause  without  requiring  the  account 
to  be  filed. 

MANDAMUS. — Semble,  That  where  a  notice  of  an  application  for  a  writ 
of  mandamus  to  a  judge  of  the  Circuit  Court,  is  served  upon  the  opposite 
party  in  interest,  and  the  judge  of  the  Court,  and  the'law  is  plain,  the  Su- 
preme Court  will  grant  a  peremptory  writ  in  the  first  instance. 

WILLIAM  TEAL  instituted  a  suit  against  John  B.  F.  Russell, 
Francis  Peyton,  and  Josiah  E.  McClure,  in  the  Cook  Circuit 
Court,  on  the  9th  of  December,  1837,  by  summons,  returnable 
to  the  March  term,  1838.  The  summons  was  returned  duly 
executed  upon  Peyton  and  McClure,  "Russell  not  found." 

On  the  22d  day  of  February,  more  than  ten  days  before  the 
session  of  the  March  term  of  the  Court,  the  plaintiffs  filed  their 
declaration  in  said  cause,  upon  a  promissory  note.  The  decla- 
ration contained  a  count  on  the  note,  and  the  usual  common 
counts.  A  copy  of  the  note  was  filed  with  the  declaration,  but 
no  account  was  filed. 

At  the  March  term  of  the  Court,  the  defendant,  Peyton, 
"  moved  the  Court  to  continue  the  cause  because  the  decla- 
ration has  a  special  count,  and  the  common  counts  ;  there  is  no 
account  filed  for  the  money  counts." 

At  the  May  term,  1838,  of  said  Court,  the  Hon.  John  Pear- 
son presiding,  the  defendant  having  renewed  his  motion,  the 
plaintiff  made  a  cross-motion  to  "  be  permitted  to  file  a  stipula- 

482 


DECEMBER  TERM,  1838.  458 

The  People  v.  Pearson. 

tion  that  lie  claims  to  recover  in  this  cause  upon  the 
promissory  *note  only,  a  copy  of  which  was  filed  with  [*459] 
the  declaration  in  this  cause  on  the  22d  of  February, 
1S38,  and  that  upon  the  filing  of  the  said  stipulation,  the  said 
motion  made  by  the  said  defendant  for  the  continuance  of  the 
cause,  be  denied^  and  that  the  Court  proceed  with  the  trial 
of  the  cause  in  its  regular  order  on  the  docket,  (upon  such 
stipulation  being  filed,)  unless  the  defendant  shall  show  some 
other  sufficient  ground  for  a  continuance,"  and  offered  to  file 
said  stipulation.  The  Court  thereupon  ordered  "that  said 
cross-motion  be  denied,  and  that  the  defendant's  motion  be 
allowed,  and  the  said  cause  be  continued  at  the  plaintiff's  costs, 
unless  the  said  plaintiff  strike  out  of  the  declaration  the  said 
common  money  counts." 

The  said  William  Teal  presented  the  record  of  said  cause, 
and  the  following  notice  and  certificate,  to  the  Supreme  Court, 
at  the  June  term,  1838: 
"  Cook  Circuit  Court. 
William  Teal 

v. 

John  B.  lf\  Russell^ 
Francis  Peyton,  and 
Josiah  E.  McClure. 

The  plaintiff  in  this  cause,  by  Butterfield  and  Collins,  his 
attorneys,  hereby  gives  notice  to  this  honorable  Court  and  the 
defendants,  that  he  will  make  an  application  to  the  next 
Supreme  Court  of  this  State,  to  be  held  at  Vandalia,  on  the 
first  Monday  in  June  next,  that  a  mandamus  be  issued,  to  the 
judge  of  this  Circuit  Court,  directing  him  to  vacate  the  order 
disallowing  the  cross-motion  made  by  the  plaintiff  in  this 
cause,  on  Friday  the  10th  inst,  and  that  he  allow  the  said  cross- 
motion  and  proceed  to  the  trial  of  the  said  cause  as  in  the 
said  cross-motion  prayed,  and  that  the  Court  make  such 
further  or  other  order  as  justice  may  require,  and  prays  that 
this  motion  be  entered  on  the  records  of  this  Court. 

BUTTERFIELD  and  COLLINS, 

Plaintiff's  att'ys. 
May  19,  1838. 

To  the  Hon.  J.  Pearson,  Judge  of  said 
Court,  and  Messrs.  Grant  and  Pey- 
ton, att'ys  for  defts." 

"  We  acknowledge  service  of  copy  of  the  foregoing  notice 
this  27th  day  of  May,  1838. 

GRANT  and  PEYTON, 
Att'ys  for  defts." 

483 


460  VANDALIA. 


The  People  v.  Pearson. 


[*460]   *  "  State  of  Illinois, ) 

Cook  County,    \  s 

I,  Richard  J.  Hamilton,  Clerk  of  the  Circuit  Court  of  said 
county,  do  certify,  That  on  the  24th  of  May,  1838,  this  paper 
was  tiled  among  the  papers  of  the  case  wherein  W.  Teal  is 
plaintiif,  and  John  B.  F.  Russell  et  al.  are  defendants,  and  was 
ordered  to  be  stricken  from  the  file  by  the  judge  of  said  Court. 
"Witness  my  hand,  at  Chicago,  this  28th  day  of  May,  A.  D. 
1838. 

R.  J.  HAMILTON,  Clerk." 

Points  made,  and  authorities  cited  by 

JUSTIN  BUTTERFIELD  and  JAMES  H.  COLLINS  for  the  relator: 

At  common  law,  where  the  declaration  does  not  disclose  the 
particulars  of  the  plaintiff's  demand,  the  defendant  has  a  right 
to  obtain  a  judge's  order,  directing  the  plaintiff  to  deliver  to 
the  defendant  a  bill  of  particulars  of  his  demand  by  a  certain 
day.  Tidd's  Practice,  534. 

"  The  bill  of  particulars  must  not  be  made  the  instrument 
of  that  injustice  which  it  is  intended  to  prevent."  Per  Mans- 
field, Chief  Justice,  in  Milwood  v.  Walter,  2  Taunt.  224. 

The  statute  of  this  State  requiring  a  copy  of  the  account, 
where  the  action  is  brought  on  an  account,  to  be  filed  with  the 
declaration,  was  not  intended  to  introduce  any  new  principle 
into  the  laws  of  this  State.  It  has  been  settled  as  well  before 
as  since  the  statute  of  Ann,  that  the  holder  of  a  promissory 
note  may  give  it  in  evidence  under  the  general  counts  for 
money  lent,  or  money  had  and  received. 

The  plaintiff  has  the  same  right  to  give  the  note  in  evidence 
under  the  money  counts,  as  under  the  count  upon  the  note. 
2  Lord  Raymond,  775 ;  2  Strange,  719  ;  3  Burr.  1516;  2  Johns. 
235 ;  8  Johns.  81 ;  12  Johns.  90. 

The  only  way  in  which  the  erroneous  decision  of  the  Cir- 
cuit judge  in  this  case  can  be  corrected  by  this  Court,  is  by 
the  issuing  of  a  mandamus. 

The  Supreme  Court  of  this  State  have  original  jurisdiction 
in  cases  of  mandamus.  Article  6,  §  2  of  the  Constitution  of 
this  State. 

"  A  writ  of  mandamus  is  of  a  most  extensively  remedial 
nature,  and  issues  in  all  cases  where  the  party  has  a  right  to 
have  a  thing  done,  and  has  no  other  specific  means  of  com- 
pelling its  performance. 

It  issues  to  the  judges  of  any  inferior  court,  commanding 
them  to  do  justice,  according  to  the  powers  of  their  office, 
whenever  the  same  is  delayed;  for  it  is  the  peculiar  business  of 
the  Court  of  King's  Bench  to  superintend  all  inferior  tribu- 


DECEMBER  TERM,  1838.  460 

The  People  t>.  Pearson. 

nals,  and  therein  enforce  the  due  exercise  of  those 
judicial  or  ministerial  powers  *with  which  the  crown     [*461] 
or  legislature  have  invested  them."    3  Blac.  Com.  110. 

When  the  Superior  Court  of  the  City  of  New  York  granted 
a  new  trial,  on  the  ground  of  newly  discovered  evidence,  and  it 
appeared  that  the  evidence  alleged  to  be  newly  discovered  was 
merely  emulative,  the  Supreme  Court  of  the  State  of  New 
York  granted  a  peremptory  mandamus  to  the  judges  of  the 
Superior  Court  of  the  City  of  New  York,  to  vacate  the  rule 
granting  a  new  trial. 

In  this  case,  the  Court  say,  a  mandamus  will  not  be  awarded 
when  the  subordinate  tribunal  has  an  absolute  discretion,  with- 
out other  control  than  its  own  judgment — as  where  criminal 
courts  are  authorized,  in  their  discretion,  to  fix  the  period  of 
imprisonment  of  convicts  within  certain  periods,  or  to  impose 
fines  within  certain  amounts  ;  but  when  the  law  has  given  to 
the  parties  rights  as  growing  out  of  a  certain  state  of  facts, 
then  discretion  ceases,  and  if  the  tribunal  charged  with  the 
matter,  commit  an  error,  its  acts  will  be  reviewed.  The 
People  v.  The  Superior  Court  of  the  City  of  New  York,  10 
Wend.  285. 

Where  a  Court  of  Common  Pleas  set  aside  a  report  of  refer- 
ees, on  the  merits,  the  Sui  reme  Court  awarded  a  peremptory 
mandamus  commanding  them  to  vacate  the  rule.  12  Wend.  246. 

The  Supreme  Court  of  New  York  awarded  a  peremptory 
mandamus  to  the  judges  of  the  Court  of  Common  Pleas  of  the 
City  and  county  of  New  York,  commanding  them  to  vacate 
a  rule  to  set  aside  a  fieri  facias.  Blunt  v.  Greenwood,  1 
Cowen,  15. 

On  an  application  for  a  mandamus,  where  both  parties  are 
heard,  and  there  is  no  dispute  about  the  facts,  and  the  law  is 
with  the  application,  a  peremptory  mandamus  will  be  granted 
in  the  first  instance.  In  such  a  case,  the  Court  will  not  put 
the  party  to  the  useless  delay  of  going  through  with  the  forms 
of  an  alternative  mandamus.  Expurte  Rogers,  6  Cowen,  526. 

Under  this  state  of  the  facts  and  the  law,  the  relator  asks 
this  Court  to  award  a  peremptory  mandamus  against  the  Cir- 
cuit judge,  commanding  him  to  vacate  the  order  made  by  him 
denying  the  relator's  cross-motion  for  leave  to  file  a  stipula- 
tion tliat  ha  claimed  to  recover  on  the  note  only,  and  com- 
manding him  to  allow  the  said  motion. 

A  mandamus  is  the  only  remedy  the  plaintiff  can  have  in 
this  case.  It  is  conceived  that  a  writ  of  error  will  not  lie. 
The  act  of  the  special  session  of  1837  (Acts  of  July,  1837, 100; 
Gale's  Stat.  540),  only  gives  a  writ  of  error  for  "overruling  a 

1  486 


461  VANDALIA. 


Edwards  et  al.  r.  Todd. 


motion  for  a  continuance  " — but  not  for  refusing  to  proceed 
and  try  a  cause. 

JAMES  GRANT  and   F.  PEYTON  opposed  the  motion. 

[*462]        *Per  WILSON,  Chief  Justice  : 

This  motion  must  be  granted.  The  case  is  too 
clear  to  admit  of  doubt.  I  can  not  conceive  upon  what  ground 
the  judge  of  the  Court  below  refused  to  grant  the  relator's 
motion.  It  was  impossible  for  the  plaintiff  to  tile  an  account, 
unless  he  manufactured  one  for  the  occasion.  The  statute  only 
requires  an  account  to  be  filed  where  the  action  is  in  reality 
brought  upon  an  account.  The  object  of  the  statute  is  to  ap- 

Erise  the  defendant  of  the  precise  nature  of  the  claim  which 
e  is  called  upon  to  answer.  The  tiling  of  an  account,  when 
the  plaintiff  had  no  claim  besides  the  note,  would  not  have 
given  the  defendants  any  additional  information.  Besides,  the 
offer  to  file  the  stipulation  removed  all  doubts,  if  any  could 
possibly  exist  before,  as  to  the  exact  nature  of  the  plaintiff's 
demand.  Let  a  peremptory  writ  issue. 

Motion  allowed. 

SMITH  and  LOCKWOOD,  Justices,  not  having  been  present  at 
the  argument  of  this  cause  at  the  last  June  term,  gave  no 
opinion. 

Note.  See  the  case  of  The  People  ex  rel.  R.  C.  Bristol  v.  John  Pearson, 
and  note,  2  Scam.  189,  206. 


ALFRED  EDWARDS  and  BENJAMIN  F.  BOSWORTH,  appel- 
lants, v.  AUGUSTUS  TODD,  appellee. 

Appeal  from  Cook. 

_  SET-OFF— UNLIQUIDATED  DAMAGES. — Under  §  17  of  the  practice  act,  un- 
liquidated damages  arising  ex  contractu  may  be  set  off  in  an  action  of  as- 
sumpsit.  The  rule  was  different  under  the  act  of  1819. 

Where  the  plaintiff  brought  an  action  of  assumpsit  to  recover  the  amount 
of  freightagreed  to  be  paid  by  the  defendants  for  the  transportation  of  their 
goods  from  Buffalo  to  Chicago,  and  the  defendants  pleaded  the  general  issue, 
and  gave  notice  of  their  intention  to  give  in  evidence  under  that  plea,  that 
a  portion  of  the  goods  agreed  to  be  transported,  exceeding  in  value  the 
whole  amount  of  the  freight  claimed,  was,  through  the  negligence,  careless- 
ness and  improper  conduct  of  the  plaintiff,  lost  and  destroyed  on  the  voyage; 
and  on  the  trial  offered  to  introduce  such  evidence,  first,  "by  way  of  set-off, 
and  secondly,  by  way  of  reducing  the  damages  claimed:  Held,  that  the  evi- 
dence was  admissible  as  well  as  a  set-off,  as  in  reduction  of  damages. 

CITED:  Unliquidated  damages,  right  to  set-off.  27  111.348;  34  Id.  500; 
*  Scam.  299;  16  Bradw.  556.  Set-off,  when  proper.  5  Gilm.  280;  3  Id. 
232.  What  is  a  good  claim  on.  1  Id.  25.  When  right  of  lien  does  not 
eiist.  18  111.  288.  See  Starr  &  C.  111.  Stat.  1791  et  seq.,  notes. 

m 


DECEMBER  TERM,  1838.  462 

Edwards  et  al.  v.  Todd. 

CONSTIUJCTION.  —  The  words  "claim  or  demand,"  in  the  section  of  the 
statute  allowing  set-offs,  is  to  be  confined  to  such  as  arise  from  "  contracts  or 
agreements,  express  or  implied." 

THIS  cause  was  tried  at  the  August  term,  1837,  of  the  Cook 
Circuit  Court,  before  the  Hon.  Jesse  B.  Thomas.  Judgment  was 
rendered  for  the  plaintiff  in  the  Court  below  for  $354.66  and 
costs,  from  which  the  defendants  appealed  to  this  Court. 

T.  FOKD,  for  the  appellants. 

*  JAMES  GKANT,  for  the  appellee,  relied  on  the  fol-  [*463] 
lowing  authorities  : 

15  Yesey;  2  Cowen;  1  Chit.  Plead.  601;  Babington  on  Set- 
Off,  11  at  top,  24,  25,  26  at  margin;  1  Taunton,  137;  6  Term 
R.  488  ;  Freeman  v.  Hyatt^  1  Blackstone  R.  391  ;  .Doweland 
v.  Thompson  et  al.,  2  Blackstone  R.  901,  exactly  in  point  ; 
Breese,  10T,  Gregg  v.  James  and  Phillips  ;  Ilanna  &  Co.,  v. 
Pleasants  and  Bridges,  2  Dana,  269  ;  5  Monroe,  1. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  assumpsit  to  recover  the  amount  of 
freight  agreed  to  be  paid  for  the  transportation  and  delivery 
of  a  certain  quantity  of  merchandise,  from  Buffalo,  in  New 
York,  to  the  port  of  Chicago,  in  the  State  of  Illinois. 

The  declaration  contains  the  usual  counts.  The  defendants 
pleaded  the  general  issue,  and  gave  notice  of  their  intention  to 
give  in  evidence,  under  that  plea,  that  a  portion  of  the  goods 
agreed  to  be  transported,  exceeding  in  value  the  whole 
amount  of  the  freight  claimed,  was,  through  the  negligence, 
carelessness,  and  improper  conduct  of  the  plaintiff,  lost  and 
destroyed  on  the  voyage.  On  the  trial,  the  defendants  offered 
to  introduce  .  such  evidence,  first,  by  way  of  set-off,  and 
secondly,  by  way  of  reducing  the  amount  sought  to  be 
recovered  in  the  action. 

The  Circuit  Court  rejected  the  evidence  as  inadmissible, 
deciding  that  the  plaintiff  was  entitled  to  recover  freight  as 
charged,  on  such  portions  of  merchandise  as  had  been  safely 
transported  and  delivered  to  the  defendants,  and  had  been 
received  by  them;  and  that  it  was  not  competent,  in  this 
action,  for  the  defendants  to  set  off  the  value  of  the  merchan- 
dise lost,  under  their  notice;  nor  could  it  be  introduced  for  the 
purpose  of  reducing  the  amount  of  freight  contracted  to  be 
paid,  and  due  for  such  portions  of  the  goods  as  had  been 
de'ivered  to  the  defendants,  and  received  by  them.  This 
instruction  of  the  Circuit  Court,  being  excepted  to  on  the 
trial,  is  now  assigned  among  other  causes  for  error. 

The  question  thus  presented  for  consideration  will  necessa 


487 


403  YANDALIA. 


Edwards  et  al.  v.  Todd. 


rily  involve  a  decision  on,  and  a  just  and  reasonable  interpreta- 
tion of,  our  statute  allowing  set-offs.  By  the  17th  section  of 
the  practice  act,  approved  29th  January,.  1827,  (R  L.  491; 
Gale's  Stat  532),  it  is  provided  that  "  The  defendant,  or  defend- 
ants in  any  action  brought  on  a  contract  or  agreement,  either 
express  or  implied,  having  claims  or  demands  against  the 
plaintiff  or  plaintiffs  in  such  action,  may  plead  the  same  or 
give  notice  thereof,  under  the  general  issue  as  is  provided  in 
the  12th  section  of  the  act;  or  under  the  plea  of  payment — 
and  the  same  or  such  part  thereof,  as  the  defendant  or  defend- 
ants shall  prove  on  trial,  shall  be  set  off  and  allowed 
[*464]  ^against  the  plaintiff's  demand."  The  12th  section, 
referred  to  in  this  provision,  declares  that  "the 
defendant  may  plead  the  general  issue,  and  give  notice  of 
the  special  matter  intended  to  be  relied  on  as  a  defense  on  the 
trial ;  under  which  notice  the  defendant  shall  be  permitted  to 
give  evidence  of  the  facts  therein  stated,  as  if  the  same  had 
been  specially  pleaded  and  issue  taken  thereon." 

In  the  investigation  to  be  made  on  this  point,  it  is  important 
to  inquire,  whether  the  "  claim  or  demand  "  of  the  defendants, 
being  of  an  unliquidated  character,  forming  a  distinct  breach 
of  a  portion  of  the  plaintiff's  contract  to  transport  and  deliver 
the  merchandise,  arid  which  would  form  a  substantive  cause 
of  action  in  itself  against  him,  could,  under  the  section  of  the 
act  quoted,  be  the  subject  of  a  set-off.  The  liability  of  the 
plaintiff  to  account  for  the  merchandise  received  by  him,  and 
agreed  to  be  transported  by  his  bill  of  lading,  and  alleged  to  be 
lost,  must  depend  on  the  fact  whether  the  loss  was  occasioned 
by  the  dangers  of  the  navigation,  which  were  excepted  in  the 
bill  of  lading,  or  by  the  negligence  and  unskillful  conduct  of 
the  plaintiff,  in  the  management  and  navigation  of  the  vessel 
of  which  he  was  the  master.  The  proof  of  negligence  and 
unskillful  conduct  devolved  on  the  defendants  to  establish ; 
and  if  proved,  would  render  the  master,  who  is  plaintiff  in  the 
action,  Jiable  to  answer  for  the  loss  occasioned  by  his  own  mis- 
conduct and  ignorance ;  and,  though  it  is  conceded,  would 
necessarily  involve  a  complication  of  facts  and  questions  to  be 
decided,  yet,  for  many  good  reasons  of  policy  and  justice, 
should  be  inquired  into,  and  allowed  to  be  set  off  against  the 
plaintiff's  demand,  to  the  amount  of  the  actual  value  of  the 
merchandise  proved  to  have  been  thus  lost  or  destroyed.  It 
can  not  be  denied,  that  in  an  action  against  the  master  as  a 
common  carrier,  he  would  be  liable  to  refund  to  the  extent  of 
the  injury  sustained,  under  such  a  state  of  facts ;  and  if  by  a 
reasonable  interpretation  of  the  act  allowing  set-offs,  and  with- 
out a  perversion  of  its  obvious  import,  this  can  be  done,  no 

488  ' 


DECEMBER  TERM,  1838.  464 

Edwards  et  al.  v.  Todd. 

good  reason  can  be  shown  why  the  defendants  should  be  driven 
to  seek  redress  in  a  separate  action  against  the  master  of  the 
vessel. 

The  language  of  our  act  in  the  section  quoted  is,  that  the 
defendant  in  any  action  brought  on  any  contract  or  agreement, 
either  express  or  implied,  having  claims  or  demands  against  the 
plaintiff  in  the  action,  such  claims  or  demands  "  shall,  on  proof, 
be  set  off  and  allowed  against  the  plaintiff's  demand."  This 
section  then  defines  by  its  terms  all  actions  arising  ex  contractu  ; 
and  would  seem  necessarily  to  have  given  an  interpretation  to 
the  nature  of  the  claim  or  demand,  which  it  is  declared  shall 
be  set  off  against  the  plaintiff's  claim,  for  the  recovery  of 
which  he  has  brought  his  action.  Set-offs  are  to  be  mutual,  it 
is  agreed ;  and  in  the  present  case  the  defendants  ask 
no  more  than  the  *right  of  charging  the  plaintiff  with  [*465] 
the  value  of  the  goods  which  he  has  not  delivered 
conformably  to  the  terms  of  his  contract ;  and  which,  they 
allege,  have,  by  his  own  acts  of  unskillfulness  and  negligence, 
been  lost. 

The  gist  of  the  right  to  make  the  set-off  arises  from  the 
failure  to  perform  that  portion  of  the  plaintiff's  contract 
which  embraced  the  stipulation  to  deliver  the  lost  goods,  as 
well  as  those  not  lost ;  and  the  plaintiff  does  not  seek  to  re- 
cover freight  for  any  other  portion  than  those  that  were  de- 
livered and  accepted  by  the  defendants. 

The  performance  by  the  master  of  the  vessel  of  his  part  of 
the  contract  on  which  the  action  itself  is  founded,  and  whether 
or  not  he  shall  be  excused  for  the  non-performance  of  a  por- 
tion of  it,  by  reason  of  the  loss  occasioned  by  the  dangers  of 
navigation,  without  any  act  of  his  arising  from  ignorance  of 
his  profession  or  negligence  on  his  part,  is  then  the  matter  in 
controversy.  The  investigation,  then,  is  confined  to  an  ascer- 
tainment of  the  performance  of  the  contract  between  the  par- 
ties, according  to  its  import  and  legal  effect ;  and  no  objection 
is  perceived  to  a  course  which  involves  the  inquiry  whether 
the  contract  has  been  so  performed  as  to  entitle  the  plaintiff  to 
recover  the  whole  or  a  part  of  the  compensation  agreed  to  be 
allowed  for  the  service  stipulated  to  be  performed ;  or  whether 
by  his  own  acts  of  negligence  and  ignorance  he  has,  in  the  at- 
tempts to  do  such  service,  occasioned  a  loss  to  the  defendants 
for  which  he  is  accountable,  and  which  should  be  deducted 
from  the  compensation  for  sucli  portion  of  the  contract  as  lias 
been  well  performed, 

The  section  allowing  set-offs  is  peculiar  in  its  phraseology, 
and  differs  most  materially  from  the  English  statute  concern- 
ing set-utf's,  as  also  from  that  of  Kentucky,  and  from  that  of 


489 


405  YANDALIA. 


Edwards  et  al.  v.  Todd. 


several  of  the  other  States  of  the  Union,  and  is  altogether  dif- 
ferent from  that  which  was  enacted  in  this  State  in  1819,  and 
which  existed  until  the  present  act  repealed  it. 

The  decision  referred  to  by  the  plaintiff's  counsel  in  Dana's 
Reports,  (2  Dana,  269,)  was  decided  under  the  act  of  Kentucky, 
which  declares  that  where  any  suit  for  a  debt  or  demand  is 
depending,  it  shall  be  lawful  for  the  defendant  on  the  trial,  if 
the  plaintiff  be  indebted  to  him,  to  plead  the  same  in  discount 
or  by  way  of  set-off ;  and  it  is  decided  in  that  case,  "  That  this 
statute  meant  moneyed  demand  in  its  strictest  legal  sense,  and 
rendered  it  of  about  the  same  signification  as  debt." 

The  act  2  George  II  declares,  "  That  where  there  are  mu- 
tual debts  between  the  plaintiff  and  defendant,  one  debt  may 
be  set  off  against  the  other." 

This  act  was  amended  by  the  act  8  George  II,  it  having  been 
doubted  whether  mutual  debts  of  a  different  nature 
[*466]  could  be  *set  off  against  each  other  ;  and  it  was  de- 
clared that  notwithstanding  such  debts  were  deemed 
in  law  to  be  of  a  different  nature,  still  they  were  allowed  to 
be  set-off,  unless  in  cases  where  a  debt  accrued  by  reason  of  a 
penalty  declared  in  a  bond,  in  which  case  a  special  provision  is 
made  that  the  same  shall  be  pleaded  in  bar,  so  that  no  more 
shall  be  allowed  than  is  justly  due. 

The  10th  section  of  the  act  of  the  22d  March,  1819,  (R 
L.  of  1819, 142,  149,)  provided  that,  "  If  two  or  more  dealing 
together  be  indebted  to  each  other  on  bonds,  bills,  bargains, 
promises,  accounts  or  the  like,  and  one  of  them  commence  an 
action  in  any  court,  if  the  defendant  can  not  gainsay  the  deed, 
bargain  or  assumption  on  which  he  is  sued,  it  shall  be  lawful  for 
such  defendant  to  plead  payment  of  all  or  a  part  of  the  debt 
or  sum  demanded,  and  give  such  bond,  bill,  receipt,  account 
or  bargain,  in  evidence." 

From  an  examination  of  this  statute,  as  comprehensive  as  it 
may  be,  it  appears  by  the  terms  " claim  or  demand"  used  in 
the  present  act,  to  have  been  the  intention  of  the  legislature 
to  place  the  right  of  set-off  on  a  still  broader  foundation,  and 
to  have  embraced  a  class  of  claims  and  demands  which  could 
not  have  been  set  off  under  the  act  of  1819  of  this  State.  Un- 
der the  British  act,  that  of  Kentucky,  and  the  act  of  our  Gen- 
eral Assembly  of  1819,  not  a  doubt  could  exist  that  the  set-off 
was  required  to  be  mutual,  and  could  not  be  of  an  unliqui- 
dated character.  By  the  common  law,  before  the  statute  of  set- 
off,  where  there  were  mutual  cross-demands  unconnected  with 
each  other,  a  defendant  could  not  in  a  Court  of  law  defeat  the 
action  by  establishing  that  the  plaintiff  was  indebted  to  him, 
even  in  a  larger  sum  than  that  sought  to  be  recovered,  and  re- 

4'JO 


DECEMBEE  TEEM,  1838.  466 

Edwards  et  al.  v.  Todd. 

lief  could  only  be  obtained  in  a  court  of  equity.  Yet,  at 
common  law,  and  before  the  enactment  of  the  statute  of  set- 
off,  a  defendant  was  entitled  to  retain  or  claim  by  way  of  de- 
duction, all  just  allowances  or  demands  accruing  to  him,  or 
payments  made  by  him  in  respect  to  the  same  transaction  or 
account  which  forms  the  ground  of  action.  This  can  not  be 
strictly  considered  a  set-off,  but  is  in  the  nature  of  a  deduc- 
tion. 

Under  this  rule  the  defendants  might  be  supposed  to  have 
had  the  right  of  showing  that  the  goods  not  delivered  were 
lost  by  the  causes  alleged,  and  as  their  value  was  readily  ascer- 
tainable  and  susceptible  of  accurate  proof,  by  showing  their 
cost  at  the  place  of  purchase,  they  were  entitled  to  have  their 
value  deducted  from  the  plaintiff's  claim  for  compensation. 

The  claim  would  not  partake   of  that  uncertain  character 
which  marks  cases  of  unliquidated  damages,  which  are  sought 
to  be  recovered  in  actions  arising  from  causes  purely  ex  delicto; 
and  which,  it  is  equally  certain,  were  not  intended  to 
be  embraced  *within  the  terms   "  claim  or  demand,"    [*467] 
and  which  arc  to  be  confined   to   such  as  arise  from 
"  contracts  or  agreements,  express  or  implied,"  as  specified  in 
the  section  allowing  set-offs,   and   beyond   which,   being  the 
boundary,  we   are  not  to  pass. 

As  the  plaintiff  would  be  liable  for  the  loss  of  the  merchan- 
dise, in  an  ordinary  action  of  assumpsit ;  and  as  it  is  manifest 
that  our  law  allowing  set-offs,  not  only  embraces  cases  not 
comprehended  in  the  British  and  American  statutes  referred 
to,  and  has  been  greatly  extended  beyond  those  embraced  in 
the  act  of  1819,  it  would  be  incorrect  to  apply  the  decisions 
made  under  those  laws  to  the  present  act,  as  evidence  that  the 
interpretation  of  the  act  should  be  the  same.  Some  doubts 
have  heretofore  existed  as  to  the  true  construction  of  this  act, 
but  when  we  reflect  on  the  intention  of  its  framers,  and  the 
objects  it  was  intended  to  accomplish,  those  doubts  must  be 
dissipated. 

From  a  careful  and  attentive  examination  and  consideration 
of  the  question  submitted  in  this  case,  we  are  of  opinion  that 
the  Circuit  Court  ought  to  have  admitted  the  evidence  pro- 
posed to  be  offered ;  and  that  it  was  admissible  under  the 
pleadings,  as  well  in  ,the  nature  of  a  set-off,  as,  also,  for  the 
purpose  of  reducing  the  amount  sought  to  be  recovered  by 
the  plaintiff. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the 
cause  is  remanded,  with  directions  to  that  Court  to  award  a 
venire  facias  de  now. 

Judgment  reversed. 

491 


i67  YANDALIA. 


Hubbard  et  al.  v.  Freer.] 


GURDON    S.  HUBBARD  and     HENRY    G.   HUBBARD, 
appellants,  v.  ELIAS  FREKR,  appellee. 

Appeal  from  the  Municipal  Court  of  the  City  of  Chicago. 

APPEALS  FROM  JUSTICES — BOND. — In  appeals  from  justices  of  the 
peace,  where  an  appeal  bond  is  decided  to  be  insufficient,  the  statute  is  im- 
perative that  the  Court  shall  permit  "  a  good  and  sufficient  bond  "  to  be 
tiled. 

AMENDMENT. — Where  the  appeal  bond  was  signed  by  one  of  the  two  ap- 
pellants, as  follows,  "Hubbard  &  Co.  [Seal]:"  Held  that  the  bond  was 
amendable. 

THIS  cause  was  tried  at  the  November  term,  1837,  of  the 
Municipal  Court  of  the  City  of  Chicago,  before  the  Hon. 
Thomas  Ford. 

JAMES  GRANT  and  F.  PEYTON,  for  the  appellants,  cited  R. 
L.  395.  (Gale's  Stat.  409.) 

[*468]  *LOCK\VOOD,  Justice,  delivered  the  opinion  of  the 
Court : 

This  action  was  commenced  by  Freer,  against  Gurdon  S. 
and  Henry  G.  Hubbard,  before  a  justice  of  the  peace,  and 
judgment  rendered  against  the  defendants.  An  appeal  was 
taken  to  the  Municipal  Court  of  the  City  of  Chicago  ;  and  the 
appeal  bond  was  executed  in  the  name  of  the  firm,  to  wit, 
"  Hubbard  &  Co.,"  with  only  one  seal.  Freer  made  a  motion 
to  dismiss  the  appeal,  on  account  of  the  defective  execution 
of  the  bond,  and  the  defendants,  made  a  cross-motion,  to  per- 
mit them  to  amend  the  bond,  or  file  a  new  one.  The  motion 
to  dismiss  was  granted,  and  the  crossMnotion  overruled.  This 
Court  has  frequently  decided,  that  where  an  appeal  bond  is 
adjudged  to  be  insufficient,  the  statute  is  imperative,  that  the 
Circuit  Court  shall  permit  a  "  good  and  sufficient  bond  "  to  be 
tiled.  The  refusal  to  grant  this  permission,  was  therefore 
error. 

The  judgment  of  dismissal  is  reversed  with  costs,  and  the 
cause  remanded,  with  directions  to  the  Court  below,  to  per- 

CITED:  Permission  to  file  good  bond.  78  111.  524.  Right  to  amend  bond. 
11  111.  546. 

492 


DECEMBEK  TERM,  1838.  468 

Berry  v.  Hamby. 

mit  the  defendants  below  to  file  a  good  and  sufficient  bond, 
and  then  proceed  to  try  the  cause  on  its  merits. 

Judgment  reversed. 

Note.  See  Dedman  v.  Barber,  ante  254;  Swaffordr.  The  People,  a»!te289- 
Grain  v.  Bailey  et  al.,  ante  321;  Yunt  v.  Brown,  ante  264. 


JAMES  BERRY,  appellant,  v.  WILLIAM  HAMBY,  appellee. 


COUNTY  TREASURETC— NOTE  PAYABLE  TO.— A  County  Treasurer  has  no 
authority  whatever  to  take  a  note  payable  to  himself  as  treasurer;  nor  has 
he  any  authority  to  assign  or  transfer  such  a  note. 

A  suit  can  not  be  maintained  in  the  name  of  a  County  Treasurer.  Sed 
quere. 

Quere,  Whether  an  action  in  the  name  of  the  county  can  be  maintained 
upon  a  note  payable  to  the  County  Treasurer. 

THIS  was  an  action  instituted  by  the  appellee  against  the  ap- 
pellant, in  the  Alexander  Circuit  Court,  upon  the  following 
note: 
"  $100. 

One  day  after  date,  I  promise  to  the  treasurer  of  Alex- 
ander county,  for  the  use  and  benefit  of  the  county,  one  hun- 
dred dollars  for  value  received.  As  witness  my  hand  and  seal. 
Unity,  June  24th,  1837.  JAMES  BERRY;  [L.  s.]  " 

On   which  is  the  following  assignment : 

"  For  value  rec'd  I  hereby  assign  the  within  note  to  "Will- 
iam Hamby.  Jan.  26,  1838.  THOMAS  HOWAKD, 

Treasurer  of  A.  C." 

*DAVID  J.  BAKER,  for  the  appellant.  [*469] 

L.  DAVIS  and  F.  FOEMAN,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  by  petition  and  summons^  on  a  promis- 
sory note  payable  to  the  "Treasurer  of  Alexander  county,-' 
for  one  hundred  dollars,  and  assigned  by  the  treasurer  to  the 
plaintiff  in  this  action. 

The  petition  avers  that  at  the  time  of  the  making  of  the 
note,  and  at  the  assignment,  the  assignor  was  the  treasurer  of 

CITED:  Authority  to  sue,  who  has  not.  3  Gil.  95.  Want  of  power  in 
County  Treasurer  to  take  under  a  particular  promise.  16  111.  170. 

493 


469  VANDALIA. 


Brown  v.  Knower  et  al. 


the  county.  The  defendant  craved  oyer  of  the  note  and  the 
assignment,  and  demurred.  The  Circuit  Court  overruled  the 
demurrer,  and  gave  judgment  for  the  amount  of  the  note. 

This  decision  is  alleged  for  error,  and  the  points  are  now 
made,  that  the  note  is  a  void  and  inoperative  instrument,  the 
treasurer  of  Alexander  county  not  being  a  person  capable  in 
law  of  contracting,  and  having  no  authority  to  assign  the  note. 
"We  have  no  doubt  on  both  the  points  made.  The  treasurer 
of  the  county  had  no  authority  whatever  to  take  a  note  paya- 
ble to  himself  as  treasurer.  His  duties  are  prescribed  in  the 
revenue  law  creating  the  office  ;  and  no  power  is  given  him  in 
the  act,  to  take  notes  or  securities  in  his  official  character  from 
any  person ;  nor  is  he  created  an  artificial  person  in  law,  capa- 
ble of  suing  as  treasurer  ;  consequently  no  suit  could  be  main- 
tained in  the  name  of  the  treasurer.  As  the  treasurer  could 
not  take  the  note,  the  assignment  was  equally  nugatory.  He 
could  not  confer  on  the  assignee  a  right  which  he  did  not 
possess  himself;  nor  could  he,  by  the  assignment  in  the  name 
of  Thomas  Howard,  Treasurer  of  Alexander  county,  vest  an 
interest  in  the  plaintiff,  to  enable  him  to  maintain  an  action  in 
his  own  name  on  the  note.  Whether  an  action  in  the  name 
of  the  county  could  be  sustained  for  money  had  and  received, 
or  money  loaned  and  advanced,  is  not  now  before  us  for  ad- 
judication. 

Judgment  reversed  with  costs. 

Judgment  reversed. 


NATHANIEL  J.  BROWN,  impleaded  with  George  B. 
Field,  plaintiff  in  error,  v.  JOHN  KNOWER  and  BEN- 
JAMIN KNOWER,  defendants  in  error. 

Error  to  the  Municipal  Court  of  the  City  of  Chicago. 

LIABILITY  OF  INDOKSKBS. — Where  there  are  several  indorsers  or  assignors 
of  a  note,  who  indorse  the  same  consecutively,  the  liability  of  each  is  sev- 
eral and  not  joint. 

STATUTE. — The  liability  of  the  assignor  of  a  note,  under  the 
[*470]    statute  of  this  State,  is  contingent;  *and  the  holder  is  required  to 
show  due  diligence  to  obtain  payment  from  the  maker,  before  he 
can  resort  to  the  assignor. 

JUDGMENT  was  rendered  in  this  cause  for  the  defendants  in 
error,  by  default,  for  $153.37  and  costs,  at  the  April  term, 
1838,  of  the  Municipal  Court  of  the  City  of  Chicago. 

491 


DECEMBER  TERM,  1838.  470 

Brown  v.  Knower  et  al. 

J.  BUTTERFIELD,  for  the  plaintiff  in  error. 

1.  When  defendants  indorse  a  note  consecutively,  they  can 
not  be  sued  thereon  jointly.     3  Peters,  477. 

2.  Where  there  is  judgment  by  default,  upon  a  promissory 
note,  and  the  money  counts  are  in  the  declaration,  it  is  error 
to  have  the  damages  assessed  by  the  clerk,  without  entering  a 
nolle  prosequi  to  the  common  counts.     6  Cowen,  40. 

I.  N.  ARNOLD,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  assumpsit  on  a  promissory  note,  by 
the  holder  against  the  defendants,  as  assignors,  who  are  sued 
jointly.  The  declaration  shows  the  defendants  assigned  the 
note  separately,  in  their  individual  names  and  not  jointly. 

Judgment  having  been  entered  against  Brown,  Field  not 
having  been  served  with  process,  the  question  is  now.  made, 
whether  the  action  can  be  sustained  against  Brown  in  its  pres- 
ent form.  There  can  be  no  doubt  that  the  liability  of  each  is 
several,  and  not  joint.  The  action,  in  its  present  form,  has 
been  misconceived.  The  liability  of  the  assignor  of  a  note, 
under  our  statute,  making  promissory  notes  assignable,  is  con- 
tingent; and  the  holder  is  required  to  show  due  diligence  to 
obtain  payment  from  the  maker,  before  he  can  resort  to  the 
indorser,  or  more  properly,  the  assignor. 

The  judgment  is  erroneous  as  to  Brown,  not  merely  because 
the  declaration  has  omitted  to  aver  due  diligence  to  obtain 
payment  of  the  maker,  but  more  especially  so,  because  of  a 
misjoinder  of  defendants  in  the  action. 

The  judgment  is  reversed  with  costs. 

Judgment  reversed 

Note.    See  Humphreys  v.  Collier  et  al.,  ante  47. 

495 


471  VANDALIA. 


Gilbert  et  al.  v.  Maggord. 


[*471]     *ABEL  GILBERT  AND  WIFE,  plaintiffs  in  error, 
v.  DAVID  MAGGORD,  defendant  in  error. 

Error  to  Will. 

MORTGAGE — FORECLOSURE — PARTIES. — Where  a  mortgage  was  executed 
by  G.  and  his  wife,  and  judgment  was  rendered  upon  a  sc  ire  facias  to  fore- 
close the  same  against  G.  and  his  wife:  Held,  that  the  wife  was  properly 
made  a  defendant,  and  that  the  judgment  was  not  erroneous. 

SAME — DOWER. — That  in  order  to  bar  the  wife's  right  of  dower,  she 
should  be  made  a  party  defendant  in  a  scire  facias  to  foreclose  a  mortgage. 

PRACTICE — ERROR. — Where  there  is  judgment  on  a  demurrer  against  the 
party  demurring,  if  he  wishes  to  avail  himself,  in  the  Supreme  Court,  of  the 
grounds  raised  by  the  demurrer,  he  must  stand  by  his  demurrer  in  the  Court 
below;  otherwise  he  will  be  precluded  from  assigning  for  error  the  judgment 
of  the  Circuit  Court. 

By  a  rule  of  the  Supreme  Court.,  no  errors  will  be  inquired  into,  but  suet 
as  are  assigned. 

THIS  cause  was  heard  in  the  "Will  Circuit  Court,  before  the 
Hon.  John  Pearson.  Judgment  was  rendered  for  the  defend- 
ant in  error. 

J.  M.  STRODE,  J.  GRANT,  J.  T.  SCAMMON,  and  G.  SPRING, 
for  the  plaintiff's  in  error. 

J.  BUTTERFIELD,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  a  proceeding  under  the  statute,  by  scire  facias,  to 
foreclose  a  mortgage.  The  defendants  pleaded  several  pleas. 
The  plaintiff,  in  the  Circuit  Court,  confessed  the  sixth  plea  of 
the  defendants,  and  replied  new  matters  in  avoidance.  To 
this  replication  the  defendants  demurred,  which  demurrer 
being  overruled  by  the  Court,  the  defendants  rejoined  to  the 
replication,  and  took  issue.  The  several  issues  were  tried,  and 
verdict  and  judgment  rendered  for  the  plaintiff.  It  is  now 
assigned  for  error,  first,  that  the  writ  is  insufficient  in  law  to 
maintain  the  action;  secondly,  that  the  Circuit  Court  erred 
in  overruling  the  defendants'  demurrer  to  the  plaintiff's 
amended  replication. 

As  tu  the  tirst  ground,  it  is  not  stated  in  what  particular  the 
writ  of  scire  facias  was  defective,  or  insufficient ;  and  it  does 
not  appear  that  any  objection  to  it  was  made  in  the  Court 

CITED:  Parties  defendant.  44  111.  38.  Wife  a  proper  party,  when.  41 
111.  190;  27  111.  445.  Demurrer  waived  by  plea.  '20  111.  515.  Parties  in 
chancery,  bill  to  foreclose.  23  111.  323.  Error  must  be  assigned.  99  111.  424. 

490 


DECEMBER  TEEM,  1838.  471 

Gilbert  et  al.  v.  Maggord. 

below,  other  than  such  as  was  alleged  and  considered  in  the 
defendant's  sixth  plea.  There  is  consequently  no  other  cause 
of  objection  before  this  Court.  On  the  argument,  it  was  said 
that  the  wife  of  the  defendant  in  the  Court  below,  had  been 
improperly  made  a  party.  She  however  appears  to  have 
pleaded  and  raised  no  objection,  whatever,  of  a  personal  char- 
acter. 

But  if  it  had  been  objected  formally,  in  the  Circuit  Court, 
we  perceive  no  good  reason  why  she,  having  signed  the  mort- 
gage, should  not  have  been  made  a  defendant  in  the 
proceedings.  On  *the  contrary,  there  appears  to  be  [*4T2] 
irresistible  reasons  why  she  should  be  joined  and 
made  a  co-defendant,  as  she  was  one  of  the  mortgagors,  and  it 
was  necessary  to  foreclose  her  equity  of  redemption  and  right 
of  dower,  that  a  judgment  should  pass  against  her.  The 
judgment  is  not  in  personam  but  in  rem,  and  is  only  for  the 
sale  of  the  mortgaged  premises,  to  satisfy  the  debt,  damages 
and  costs  of  suit. 

With  regard  to  the  second  objection,  it  is  to  be  remarked,  that 
it  has  been  frequently  settled  in  this  Court,  that  where  there 
is  judgment  on  a  demurrer  against  the  party  demurring,  if  he 
wishes  to  avail  himself  of  the  grounds  raised  by  the  demurrer, 
in  this  Court,  he  must  stand  by  his  demurrer  in  the  Court 
below,  otherwise  he  will  be  precluded  from  assigning  for 
error  the  judgment  of  the  Circuit  Court.  As  the  defendants 
in  the  Circuit  Court  must  have  asked  leave  to  withdraw  their 
demurrer,  and  rejoin  to  the  plaintiffs  replication,  the  correct- 
ness of  the  decision  of  the  Court  below  on  the  demurrer  can 
not  now  be  inquired  into. 

By  a  standing  rule  of  this  Court,  no  other  errors  shall  be  in- 
quired into  but  such  as  are  assigned.  There  might  possibly 
be  an  exception  to  this  rule  in  a  case  of  an  extreme  character, 
where  great  injustice  might  result  from  a  literal  and  rigid  ad- 
horence  to  the  rule;  but  we  can  perceive  no  reason  for  a  de- 
parture from  it  in  this  case,  and  no  other  grounds  can  then  be 
inquired  into. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

Note.    See  Peck  v.  Boggess,  ante  281;  Buckmaster  v.  Grundy,  ante  310 
VOL.  1-32  4OT 


472  VANDALIA. 


Townsend  r.  Briggs. 


GEORGE    TOWNSEND,   plaintiff  in   error,  v.  RICHARD 
BRIGGS,  defendant  in  error. 

Error  to  Schuyler. 

PUBLIC  LANDS — IMPROVEMENTS. — A  promise  made  by  a  purchaser  of  a 
portion  of  the  public  lands  of  the  United  States,  subsequently  to  the  pur- 
chase, to  pay  for  improvements  made  thereon  previous  to  the  sale  of  the 
same,  is  without  consideration  and  void. 

TH.  L.  DICKEY,  for  the  plaintiff  in  error. 

LOCKWOOD  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  commenced  before  a  justice  of  the  peace, 
and  brought  by  appeal  into  the  Circuit  Court  of  Schuyler 
county.  On  the  trial  of  the  cause  in  the  Circuit  Court, 
Briggs,  the  plaintiff  below,  proved  that  some  five  or  six  years 
ago  he  made  an  improvement  on  the  public  lands ; 
[*4:73]  that  subsequent  to  the  making  *of  the  improvement, 
Townsend,  the  defendant  below,  purchased  the  land 
of  the  United  States,  and  in  a  conversation  between  the  parties, 
Townsend  promised  that  he  would  pay  Briggs  the  value  of 
his  improvement  when  he  was  able.  Evidence  was  also 
given  that  Townsend  was  able  to  pay.  There  was  some  other 
testimony  in  the  cause,  which  it  is  unnecessary  to  state. 
Townsend  objected  to  the  legality  and  sufficiency  of  the  testi- 
mony to  render  him  liable  to  the  action.  The  Circuit  Court 
overruled  the  objection,  and  gave  judgment  for  the  plaintiff 
below ;  to  which  decision  the  defendant  excepted,  and  brought 
the  cause  into  this  Court  by  writ  of  error.  The  only  question 
presented  in  this  case  is,  whether  a  promise  made  by  a  pur- 
chaser of  the  public  lands,  to  pay  for  improvements  made  on 
the  land,  previous  to  the  purchase  of  the  government,  is  bind- 
ing in  law. 

In  the  case  of  Carson  v.  Clark  decided  at  December  term, 
1833  (ante  113)  and  of  Hutson  v.  Overturf  decided  at 
December  term,  183-i,  (ante  170),a  this  Court  decided  that  the 
promise  made  by  a  vendee,  after  the  purchase  of  the  land 
from  the  government,  to  pay  for  improvements  made  upon 
the  land  previous  to  the  purchase,  was  a  promise  without  con- 
sideration and  void.  The  Court  in  the  last  mentioned  case, 
also  decided,  that  the  '•'•Act  relative  to  Contracts  for  tfie  Sale 
of  Improvements  on  Public  Land"  approved  February  15, 

CITED:  Promise,  when  without  consideration.     16  111.  62; 
•See,  also,  Blair  v.  Worley,  ante  178. 


DECEMBER  TERM,  1838.  473 

The  People  v.  Pearson. 

1831,  had  not  made  such  promise  binding  on  the  party  mak- 
ing it.  The  promise  proved  in  the  Court  below  is,  according 
to  these  decisions,  without  consideration  and  void. 

The  judgment  of  the  Circuit  Court  must  be  reversed  with 
costs. 

Judgment  reversed. 


THE  PEOPLE  OF  ,THE  STATE  OF  ILLINOIS,  ex  relatione 
NATHANIEL  J.  BROWN  v.  JOHN  PEARSON,  Judge  of 
the  Cook  Circuit  Court. 

Application  for  a  Writ  of  Mandamus. 

PLEADING — DECLARATION  ON  BILL  OP  EXCHANGE — PRACTICE. — It  is  un- 
necessary to  file  an  account  with  a  declaration  upon  a  bill  of  exchange  contain- 
ing a  special  count  on  the  bill,  and  the  common  money  counts,  in  order  to 
use  the  bill  as  evidence  under  the  money  counts. 

MANDAMUS. — Where  the  Circuit  Court  granted  a  continuance  because  an 
account  was  not  filed  with  the  declaration  on  a  bill  of  exchange,  which  con- 
tained a  special  count  and  the  common  money  counts,  although  the  declara- 
tion and  a  copy  of  the  bill  declared  on,  was  filed  more  than  ten  days 
previous  to  the  session  of  the  Court,  the  Supreme  Court  granted  a  writ  of 
mandamus  to  the  judge  of  the  Circuit  Court,  directing  him  to  rescind  the 
order  for  a  continuance,  and  proceed  with  the  cause  upon  the  merits,  with- 
out requiring  the  plaintiff  to  file  an  account  under  the  money  counts. 

*AT  this  term  of  the  Court,  the  relator  filed  a  copy     [*474] 
of  the  record  of  the  cause  of  the  relator  against  Har- 
vey C.  Newcomb,  and  the  following  notice,  and  moved  the 
Court  for  a  writ  of  mandamus  to  the  judge  of  the  Cook  Cir- 
cuit Court : 
"  Nathaniel  J.  Brown  v.  Harvey  C.  JVewcomb. 

Gents — Please  take  notice  that  we  shall  move  the  Su- 
preme Court  of  this  State,  at  the  term  thereof  to  be  holden 
at  Yandalia,  on  the  3d  Monday  of  December  inst,  upon  the 
transcript  of  the  record  filed  in  this  cause,  that  a  writ  of  man- 
damus be  issued  and  awarded  to  the  judge  of  the  Cook  County 
Circuit,  commanding  him  to  vacate  an  order  made  by  him  in 
this  cause  at  the  last  August  term  of  the  paid  Court,  held  at 
Chicago,  denying  a  certain  cross-motion  made  in  the  said 
cause  by  the  said  plaintiff,  for  leave  to  proceed  to  the  trial  of 
the  said  cause,  upon  his  abandoning  all  right  to  give  in  evi- 
dence under  either  of  the  counts  in  the  declaration,  any  demand 
except  the  said  bill  of  exchange  set  forth  in  the  first  count  of 

«M 


474  VANDALIA. 


The  People  v.  Pearson. 


the  said  declaration  ;  and  that  the  said  judge  grant  and  allow 
the  said  cross-motion. 

Dated  December  10th,  1838. 

Yours,  etc. 

BUTTERFIELD    &    COLLINS,  Plff.'s  Attys. 

To  Messrs.  Arnold  &  Ogden,  Esqrs.,  Deft's  Attys." 

"We  admit  due  service  of  a  copy  of  the  above  notice  of 
motion,  and  waiving  all  other  questions,  consent  that  the  Court 
make  such  order  in  the  premises  as  may  be  deemed  just. 

Dated  December  12th,  1838. 

ARNOLD  &  OGDEN,  Deft.'s  Attys." 

The  following  bill  of  exceptions  states  all  the  material  facts 
in  the  case : 
"  Nathaniel  J.  Brovm  v. ) 

Harvey  C.  Newcomb.     \ 

Be  it  remembered  that  at  the  August  term  of  the  Cook 
Circuit  Court,  held  at  the  Court  House  in  the  city  of  Chicago, 
on  the  22d  day  of  August,  in  the  year  one  thousand  eight 
hundred  and  thirty-eight,  came  the  defendant,  by  Arnold  & 
Ogden,  his  attorneys,  and  moved  the  Court  that  this  cause  be 
continued,  because  there  is  no  account  filed  under  the  general 
lounts,  and  thereupon  the  said  plaintiff,  by  Butterfield  &  Col- 
cins,  came  and  made  his  cross-motion  that  he  be  allowed  to 
proceed  to  trial  in  this  cause,  upon  the  written  instrument  set 
forth  in  the  first  count  of  the  declaration,  and  hereby  aban- 
dons all  right  to  give  in  evidence  under  the  other  counts  in 
the  declaration,  any  demand  except  the  said  bill  of  exchange 
set  forth  in  said  first  count  of  the  said  declaration,  and  here- 
by consents  that  the  common  counts  in  the  said  declaration 
be  so  far  struck  out  of  the  declaration,  saving  only  to 
[*475]  the  plaintiff  the  right  to  give  the  said  bill  of  *exchange 
in  evidence  under  any  of  the  counts  in  the  declaration 
applicable  to  the  said  bill  of  exchange.  And  therefore  the 
Court  decided  that  the  motion  to  continue  the  said  cause  be 
sustained,  and  the  cross-motion  be  overruled,  and  that  the 
cause  be  continued  at  the  plaintiff's  costs;  to  which  decision 
the  plaintiff  excepted,  and  tendered  to  the  said  Court  this  bill 
of  exceptions,  which  the  said  Court  has  signed  and  sealed,  ac- 
cording to  the  statute  in  such  case  made  and  provided. 

JOHN  PEARSON.     [L.  s.]" 

J.  BUTTERFIELD  and  JAMES  H.  COLLINS,  for  the  relator. 

J.  N.  ARNOLD  and  M.  D.  OGDEN,  contra. 

Per  Curiam:    The  facts  in  this  case  are   similar  to  those 


DECEMBER  TERM,  1838.  475 

Day  v.  Cushman  et  al. 

in  the  case  of  the  People,  ex  relations  Teal,  against  the  judge 
of  the  Cook  Circuit  Court,  (ante  458,)  decided  at  this  term 
of  the  Court ;  and  the  same  disposition  must  be  made  of  it. 

Let  a  peremptory  writ  of  mandamus  issue  to  the  judge  of 
the  Cook  Circuit  Court,  directing  him  to  rescind  the  order 
for  a  continuance,  and  to  proceed  with  the  cause  upon  its 
merits. 

The  costs  of  this  application  will  abide  the  event  of  the  trial 
in  the  Court  below. 

Writ  of  mandamus  granted. 


JAMES  DAY,  plaintiff  in  error,  v.  CUSHMAN,  EATON  & 
Co.,  defendants  in  error. 

Error  to  La  Salle. 

SCIRE  FACIAS  TO  FORECLOSE  MOKTGAGE. — Where  a  scire  facias  to  fore- 
close a  mortgage  commanded  the  defendant  to  answer  unto  "  Cushman,  Eaton 
&  Co.,"  without  showing  or  averring  what  persons  composed  the  said  firm: 
Held,  that  the  omission  was  fatal. 

A  scire  facias  to  foreclose  a  mortgage  payable  by  installments,  must  state 
that  the  last  installment,  has  become  due. 

In  summary  proceedings  under  a  statute,  the  provisions  of  the  statute 
must  be  strictly  complied  with." 

AT  the  September  term,  1837,  of  the  La  Salle  Circuit 
Court,  the  Hon.  Jesse  B.  Thomas  presiding,  judgment  was 
rendered  by  default  against  the  plaintiff  in  error,  upon  the 
foreclosure  of  a  mortgage  by  scire  facias,  for  $1,219.17  and 
costs  of  suit.  The  cause  was  brought  to  this  Court  by  writ  of 
error. 

JAMES  GKANT  and  FR.  PEYTON,  for  the  plaintiff  in  error. 
L.  DAVIS  and  F.  FORMAN,  for  the  defendants  in  error. 

*SMITH,  Justice,  delivered  the  opinion  of  the  Court :     [*476] 
This  was   a   proceeding   under  the  statute,  on  a 

scire  facias  to  foreclose  a  mortgage.    Amongst  other  errors  OS- 
CITED:  Judgment  by  default,  statute  strictly  construed.    4  Scam.  875; 

3  Bradw.  543. 

"Construction  of  statutes— When  strict. 
Where  a  statute  grants  a  special  power  it  should  be  strictly  construed. 

;In  addition  to  the  above  case  of  Day  v.  Cushman,  see  Clark  v.  Lewis,  35  III. 

417-    Charles  v.  Waugh,  35111.315;    Chestnutwood  ».  Hood,  68  111.  132; 

Mitchell  v.  111.  &  St.  L.  R.  Co.,  68  111.  286. 

601 


476  VANDALIA. 


Guykowski  v.  The  People. 


signed,  it  is  proposed  to  notice  but  two :.  First,  The  scire 
facias  commands  the  defendant,  in  the  Circuit  Court,  to  an- 
swer the  complaint  of  Cushman,  Eaton  &  Co.,  without  disclos- 
ing the  Christian  names  of  Cushman  and  Eaton,  or  of  those 
embraced  under  the  term  Co.  Secondly,  The  scire  facias 
does  not  aver  that  the  last  installment  of  money,  to  secure 
the  payment  of  which  the  mortgage  was  given,  had  fallen 
due. 

It  is  too  obvious  to  doubt,  that  the  omission  of  the  Christian 
names  of  the  plaintiffs  in  the  action,  as,  also,  of  the  names  of 
the  persons  who  composed  the  Company,  is  fatal ;  equally  so, 
the  neglect  to  state,  as  the  statute  has  declared,  that  the  last 
payment  had  become  due,  before  the  suing  out  of  the  scire 
facias.  As  the  proceedings  under  the  statute  are  summary, 
it  should  be  strictly  complied  with. 

The  statute  of  jeofails  does  not  cure  the  omissions ;  and 
as  there  has  been  no  appearance,  the  errors  have  not  been 
waived. 

Judgment  reversed  with  costs. 

Judgment  reversed. 


AJSTTOINI  GUYKOWSKI,  plaintiff  in  error,  v.  THE  PEOPLE 
OF  THE  STATE  OF  ILLINOIS,  defendants  in  error. 

Error  to  Clinton. 

CRIMINAL  LAW — WAIVER  OP  RIGHTS. — In  a  criminal  cause  the  accused 
stands  on  all  his  rights,  and  waives  nothing  which  is  irregular,  and  more  es- 
pecially so  when  life  is  in  question.* 

JURORS — ALIENS. — An  alien  is  not  qualified  to  serve  as  a  juror  in  any 
case. 

The  declaration  that  certain  qualifications  are  necessary  to  be  possessed  by 
the  individual,  to  constitute  him  a  juror,  necessarily  disqualify  the  person  who 
does  not  possess  such  qualifications. 

NEW  TRIAL — AFFIDAVITS. — The  affidavit  of  a  prisoner,  upon  a  motion 
for  a  new  trial,  is  prima  fade  evidence  of  the  truth  of  the  statements  it 
contains. 

CITED  :  Legal  rights  can  not  be  waived.  70  111.  178.  Effect  of  swearing 
an  incompetent  juror.  2  Scam.  336;  alienage,  a  disqualification.  3  Gil.  219; 
40  111.  356. 

^Criminal  law — Waiver  of  rights  by  defendant. 

The  defendant  in  a  capital  case  may  waive  his  rights,  though  he  will  not 
be  presumed  to  have  done  so  where  the  record  does  not  expressly  show  his 
consent  thereto.  Perteet  v.  People,  70  111.  171,  reviewing  the  above  case  of 
Guykowski  v.  People.  See  also,  McKinney  v.  People,  2  Gilm.  556;  Chase 
T.  People,  40  III.  356;  People  v.  Scates,  3  Scam.  351;  Kafferty  v.  People, 
66  III.  118;  Bedee  v.  People,  73  111.  321;  Weyrich  v.  People,  89  111.  90. 

502 


DECEMBER  TERM,  1838.  476 

Guykowski  v.  The  People. 

Semble,  That  the  affidavit  of  a  juror  in  support  of  the  verdict  on  a  point 
entirely  disconnected  with  his  acts  or  the  motives  for  his  conduct,  may  be 
admitted  on  a  motion  for  a  new  trial. 

PRACTICE. — Where  the  precept  for  summoning  the  jury  at  a  special 
term  of  a  Circuit  Court  called  for  the  trial  of  a  prisoner  charged  with  a  cap- 
ital crime,  had  been  lost  by  the  sheriff,  and  the  Court  directed  a  new  one  to 
be  filed  nunc  pro  tune:  Held,  that  there  was  no  error. 

OBJECTION  TO  INDICTMENT. — All  mere  formal  objections  to  an  indictment 
should  be  made  before  pleading. 

IN  June,  1838,  a  special  term  of  the  Circuit  Court  was  held 
in  Fayette  county,  for  the  trial  of  Guykowski,  the  plaintiff  in 
error,  then  imprisoned  in  the  jail  of  said  county,  on  the  charge 
of  having  murdered  Nelson  Ryall. 

*The  judge  produced  in  Court  the  written  notifica-     [*477] 
tion  of  the  sheriff  of  said  county,  requesting  that  a  spe- 
cial term  of  said  Court  be  held  for  the  purpose  of  the  said  trial. 

The  judge  certified  that  he  had  issued  his  precept  to  the 
said  sheriff,  authorizing  him  to  summon  jurors,  and  the  sheriff 
made  affidavit  that  the  said  precept  had  been  lost  or  mislaid, 
after  the  jurors  had  been  summoned. 

The  Court  thereupon  ordered  a  precept  to  be  filed  nunc  pro 
tune. 

The  defendant,  by  his  counsel  moved  to  quash  the  array, 
which  motion  was  afterward  withdrawn. 

The  counsel  on  behalf  of  the  People,  then  moved  to  quash 
the  array  on  the  ground  that  the  precept  had  not  been  re- 
turned by  the  sheriff.  The  motion  was  overruled. 

On  the  second  d  ly  of  the  term  Josiah  Fisk  was  appointed  by 
the  Court,  to  prosecute  in  the  absence  of  the  Attorney  General. 

On  the  third  day  of  the  term,  the  grand  jury  found  an  in- 
dictment for  murder  against  Guykowski.  He  pleaded  not 
guilty. 

The  venue  was  changed  upon, the  application  of  the  prisoner, 
to  Clinton  county,  where  the  cause  was  tried  at  the  September 
term,  1838,  before  the  Hon.  Sidney  Breese,  and  a  verdict  of 
guilty  found  by  the  jury. 

The  defendant  nio/cd  the  Court  for  a  new  trial,  on  the  fol- 
lowing grounds : 

1.  That  the  verdict  was  contrary  to  law  and  evidence. 

2.  That  John  Burnside,  one  of  the  jurors  in  the  cause,  was 
an  alien  and  an  unnaturalized  citizen,  which  fact  was  unknown 
to  the  defendant  and   his  counsel,  until  after  the  rendering  of 
said  verdict.     The  last  ground  was  supported  by  the  affidavit 
of  the  defendant. 

This  motion  the  Court  overruled,  to  which  opinion 
Court,  the  defendant,  by  his  counsel,  excepted. 

The  defendant  filed  his  affidavit,  stating  that  the  Attorney 


477  VANDALIA. 


Guykowski  v.  The  People. 


General  had  resigned  previous  to  the  trial  of  said  cause,  and 
that  no  appointment  had  been  made  by  the  Governor  until 
after  the  same ;  and  that  one  Josiah  Fisk,  without  authority, 
advised  the  finding  of  said  indictment ;  and  then  moved  in  ar- 
rest of  judgment,  on  the  following  grounds : 

1st.  That  no  person  was  authorized  by  law  to  sign  said  in- 
dictment. 

2d.  That  the  Attorney  General  at  the  time  of  finding  said 
indictment,  had  resigned  his  office. 

3d.  That  Josiah  Fisk,  who  signed  the  same,  had  no  legal  au- 
thority to  do  so. 

4th.  The  authority  of  the  grand  jury  to  find  the  indict- 
ment, is  not  set  forth  in  the  indictment. 

[*47S]         *5th.  It  is  nowhere  shown  in  said  indictment,  that 
the  Court  was  called  for  the  trial  of  the  defendant. 

6th.  The  sheriff  did  not  return  the  order  of  the  judge,  and 
the  process  by  which  the  Court  was  called,  and  grand  and  petit 
jurors  summoned. 

This  motion  the  Court  Overruled. 

Sentence  of   death  was  then  pronounced  on  the  defendant. 

A.  P.  FIELD  and  JAMES  SHIELDS,  for  the  plaintiff  in  error, 
relied  upon  the  following  points  and  authorities  : 

Aliens  disqualified  from  being  jurors:  R.  L.  378  (Gale's 
Stat.  395);  3  Coke  on  Littleton,  516,  Aliens  to  be  challenged  ; 

1  Chit.  Grim.  Law  251,  No  alien  can  serve  on  grand  jury  ;  do. 
408,  Whenever  a  grand  juror  may  be  challenged,  so  may  a  petit 
juror ;  3  Harr.  &  McHenry,  100,  A  disqualified  juror  is  cause 
for  new  trial ;  Wharton's  Digest. 

Affidavit  of  disqualification  of  juror  sufficient. 
9  Pirtel's  Digest  112,  Affidavit  of  party  sufficient ;  1  Marsh. 
213;  Bratton  v.  Bryant,  3  J.  J.  Marsh.  526;  Ewing  v.  Price, 

2  Pirtle's  Dig.  121,  Art.  124  ;  Wharton's  Dig.  407;  Bratton  v. 
Bryant,  1  Marsh.  212.      The  party  opposing  a  motion  may 
adduce  counter  evidence. 

In  arrest  of  judgment. 

Precept — 3  Coke  on  Littleton,  504;  Precept  defective — 18 
Johns.  212,  People  v.  McKay. 

Indictment. 
Wharton's  Digest  171,  Caption  of — 1  Saunders  250,  note. 

Vacancy  in  the  office  of  Attorney  General. 
Wharton's  Digest,  177,  State  v.  Simms,  1  Term  Rep.,  No 
Attorney  General,  criminal  may  be  discharged. 

GEORGE  W.  OLNEY,  Attorney  General,  for  the  defendants  in 
error. 

504 


DECEMBER  TEEM',  1838.  478 

Guykowski  v.  The  People. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
The  prisoner,  Guykowski,  was  indicted  for  the  murder  of 
one  Nelson   Ejall,  at  a  special  term  of  the   Fayette   Circuit 
Court,  held  under  the  provisions  of  the  ninth  section  (  Acts 
of  1835,^  171 ;  Gale's  Stat.  187)  of  "An  Act  regulating  the  times 
of  holding  the  Supreme  and  Circuit  Courts"  and  for  other 
purposes,  approved  15th  February,  1835,  which  authorizes  the 
holding  of  such  terms,  at  the  request  of  a  prisoner  charged 
with  a  capital  offense,  when  he  may  demand  a  speedy  trial.     At 
this  special  term,  the  Court   ordered  a  precept  for 
*summoning  a  grand  and  petit  jury  to  be  filed  nunc     [*479] 
pro  tune  in  consequence  of  the  loss  of  the  first  one  by 
the  sheriff. 

The  counsel  for  the  prisoner  challenged  the  array  of  the 
grand  jury  for  this  cause,  but  subsequently  withdrew  his  objec- 
tion. The  Attorney  General,  on  behalf  of  the  prosecution, 
renewed  it,  and  the  Court  overruled  the  exception.  The  pris- 
oner then  challenged  some  of  the  grand  jurors  for  cause.  After 
the  indictment  was  found,  the  prisoner  applied  for,  and  ob- 
tained, a  change  of  venue,  to  the  Circuit  Court  of  the  county 
of  Clinton.  He  was  there  tried  and  convicted  at  a  regular 
term  of  that  Court.  After  conviction,  his  counsel  moved  for 
a  new  trial,  and  in  arrest  of  judgment,  both  of  which  motions 
were  overruled,  and  sentence  of  death  pronounced.  A  writ  of 
error  having  been  sued  out,  and  a  supersedeas  awarded,  in 
pursuance  of  the  189th  section  of  the  "Act  relative  to  Crimi- 
nal Jurisprudence"  (R.  L.  217;  Gale's  Stat.  235,) and  the  case 
being  before  the  Court  for  revision,  it  is  now  assigned  for 
error : 

1.  That  the  Circuit  Court  ought  to  have  awarded  a  new 
trial,  becrxise  one  of  the  jurors,  who  tried  the  cause,  was  an 
alien  at  the  time  of  the  trial,  and  therefore  not  qualified  to 
serve  as  a  juror  ;  such  alienage  being  at  such  time  unknown  to 
the  prisoner. 

2.  That  the  motion  in  arrest  of  judgment,  ought  to  have 
prevailed,  because  the  person  signing  the  indictment  was  not 
the  Attorney  General,  nor  authorized  by  law  to  sign  the  same. 
Also,  because  it  is  not  set  forth  in  the  body  of  the  indictment, 
that  the  grand  jury  had  the  authority  to  find  the  same  ;  be- 
cause it  is  not  averred  in  the  indictment  that  the  Court  was 
called  specially  for  the  trial  of  the  prisoner;  and  because  a 
precept  for  summoning  the  grand  jury  at  the  special  term  of 
the  Fayette  Circuit  Court,  had  been  filed  nunc  pro  tune,. 

The  delicate  and  responsible  trust  which  this  tribunal 
called  on  to  exercise,  in  reviewing  cases  of  the  character  under 
consideration,  sufficiently  admonishes   it  of  the  caution   and 


COS 


470  YANDALIA. 


Guykowski  r.  The  People. 


prudence  with  which  Bich  re-examinations  should  be  con- 
ducted; and  that,  where  there  is  every  reason  to  believe,  from 
an  inspection  of  the  proceedings,  that  the  intrinsic  merits  of 
the  case  have  been  fairly  ascertained  and  determined,  the  ad- 
judication of  the  inferior  tribunal  should  not  be  disturbed, 
unless  it  satisfactorily  appear  that  some  settled  and  well  estab- 
lished principle  of  criminal  law,  or  rule  of  proceeding,  has 
been  clearly  violated. 

While  the  justice  of  the  rule  here  asserted  is  admitted,  and 
an  adherence  to  its  principles  conceded,  it  is  of  equal  impor- 
tance that  the  rights  of  the  accused  should  be  protected  and 
preserved,  and  the  essential  forms  of  law  prescribed  for  the 
mode  of  conducting  the  ascertainment  of  his  guilt,  should  be 
carefully  observed  and  followed.  A  departure  from  them 
could  not  fail  to  produce  difficulties  and  doubts.  A 
[*4SO]  recognition  of  a  departure,  in  *one  case,  might  lead 
to  the  adoption  of  another,  and  finally,  those  barriers, 
which  are  guaranties  for  the  regular  and  impartial  conducting 
of  criminal  cases,  might  be  frittered  away,  and  cause  inter- 
minable perplexities,  and  possibly  eventuate  in  gross  injustice. 
It  is  much  easier  to  require  the  observance  of  the  mandates  of 
the  law,  than  to  determine  in  what  cases  they  may  safely  be 
dispensed  with. 

It  is,  therefore,  more  proper,  and  more  consonant  to  reason 
and  justice,  to  require  a  substantial  adherence,  than  to  suffer 
innovations  upon  the  known  and  positive  rules  prescribed  by 
law,  for  the  regular  conducting  of  causes.  The  justice  of  these 
grounds  is  as  clear  and  apparent,  as  those  which  are  founded 
on  principles  of  humanity,  and  by  which  the  administration  of 
criminal  law  has  been  marked,  declare  that  the  accused  stands 
on  all  his  rights,  and  waives  nothing  which  is  irregular,  and 
more  especially  so,  when  life  is  in  question. 

Testing  the  present  case  by  the  principles  here  recognized, 
and  applying  them  to  the  facts  of  the  case,  it  will  be  per- 
ceived that  the  first  objection  presents  grounds  deserving 
attentive  and  grave  consideration.  The  bill  of  exceptions 
discloses  the  fact,  that  after  the  conviction  of  the  prisoner,  an 
application  for  a  new  trial  was  made,  based  on  his  deposition, 
which  disclosed  the  fact  that  John  Burnside,  one  of  the  jurors 
who  had  rendered  the  verdict,  was  an  alien,  as  he  had  been 
then,  for  the  first  time,  informed,  and  believed,  and  that  such 
information  came  to  his  knowledge  since  his  conviction.  On 
this  deposition  the  inquiry  arises,  1st,  Whether  the  juror,  ad- 
mitting the  fact  of  alienship  to  be  true,  was  an  unqualified 
juror,  and  if  so,  whether  the  verdict  was  not  void  for  that^ 
cause.  2d,  Whether  the  deposition  of  the  prisoner  was  suffi- 

003 


DECEMBER  TERM,  1838.  480 

Guykowski  v.  The  People. 

cient  evidence  of  the  fact  of  alienship,  and  was  admissible  as 
evidence  of  the  fact.  To  determine  the  first  inquiry,  as  to  the 
competency  of  the  juror,  we  must  recur  to  the  act  prescribing 
the  mode  of  summoning  grand  and  petit  jurors,  and  defining 
their  qualifications  and  duties,  in  force  1st  June,  1827.  (R.  L. 
378  ;  Gale's  Stat.  395.)  By  that  act  it  is  declared,  that  "  All 
free,  white,  male,  taxable  inhabitants,  in  any  county  in  this 
State,  being  natural  born  citizens  of  the  United  States,  or 
naturalized  according  to  the  Constitution  and  laws  of  the 
United  States,  and  of  this  State,  between  the  ages  of  twenty- 
one  and  sixty  years,  not  disabled,  by  the  commission  of  crime, 
or  bodily  infirmity,  and  being  of  sound  mind  and  discretion, 
shall  be  deemed  and  considered  competent  persons  to  serve  on 
grand  and  petit  juries." 

From  this  section  there  can  be  no  doubt  whatever,  that  an 
alien  is  not  qualified  to  serve  as  a  juror  in  any  case.  The  dec- 
laration that  certain  qualifications  are  necessary  to  be  possessed 
by  the  individual,  to  constitute  him  a  juror,  necessarily 
disqualify  *the  person  who  does  not  possess  such  [*4S1] 
qualifications,  from  being  one.  It  is  not  a  mere 
personal  exemption,  from  service,  which  the  individual  may 
claim,  but  an  entire  exclusion  from  such  service.  The  per- 
sons who  are  entitled  to  personal  exemption  from  service, 
are  enumerated  in  the  act.  An  alien  is  not  capable  in  law 
to  discharge  the  functions  of  a  juror.  In  a  cauee  where  an 
alien  serves  as 'a  juror,  he  can  not  be  considered  the  lawful 
juror  whom  the  sheriff  is  called  on  to  summon  for  the  trial 
of  the  cause.  He  is  not,  in  the  language  of  the  common 
law,  free  from  all  exception,  but  is  prohibited  from  sitting 
as  a  juror  ;.  and  although  he  is  not  challenged,  and  the  accused 
may  be  considered  as  tacitly  consenting  by  not  objecting  to  his 
serving  on  the  jury,  still  he  can  not  be  rendered  competent  to 
serve  by  the  presumed  assent  of  the  accused,  because  the  law 
has  not  admitted  him  to  act  in  such  capacity. 

It  may  also  be  fairly  presumed  that  it  was  incumbent  on  the 
prosecution  to  take  care  that  the  jurors  were  competent  and 
legally  qualified  according  to  the  provisions  of  the  law  under 
which  they  were  chosen  and  selected. 

The  verdict  can  not  be  considered  as  the  unanimous  opinion 
of  twelve  persons  capable  in  law  of  determining  the  law  and 
the  facts  submitted  to  their  consideration  and  decision;  but  as 
the  opinion  of  eleven  only;  the  other  being  disqualified  from 
being  one  of  their  number.  The  verdict  is  a  nullity,  not  hav- 
ing been  obtained  as  the  law  has  required. 

The  second  branch  of  the  question  under  consideration, 
whether  the  deposition  of  the  prisoner  was  sufficient  evidence 

CO/ 


VANDALIA. 


Guykowski  «.  The  People. 


of  the  facts  of  alienage  and  was  admissible  to  prove  such  fact, 
can  be  determined  only  from  the  circumstances  which  appear 
in  the  case,  and  the  reasons  which  may  be  drawn  from  the  ad- 
mission of  such  depositions  in  other  cases.  In  civil  cases  the 
deposition  of  the  defendant  of  the  existence  of  particular  facts, 
before  unknown,  and  of  newly  discovered  evidence  for  the 
purpose  of  moving  for  a  new  trial,  is  frequently  received,  and 
the  adrnissibility  thereof  has  not,  we  believe,  been  questioned ; 
and  numerous  new  trials  have  been  granted  on  facts  disclosed 
by  such  depositions.  If  this  rule  obtains  in  civil  cases  we 
do  not  perceive  any  objection  to  it  in  criminal  ones,  sub- 
ject to  the  right  on  the  part  of  the  prosecution  to  disprove 
by  counter  evidence  the  truth  of  the  facts  alleged  by  the  ac- 
cused. 

It  may  be  urged  that  a  party,  after  conviction  of  a  flagrant 
crime,  for  the  purpose  of  obtaining  another  trial,  or  the  pro- 
crastination of  the  judgment  of  the  law,  would  not  hesitate  to 
resort  to  these  means  as  an  expedient  for  the  accomplishment 
of  an  object  so  desirab'e  to  him  ;  and  that  perjury  might  read- 
ily be  conceived  to  be  the  consequence  of  the  adoption  of 
such  a  rule.  This  reasoning  is  not  just,  because  al- 
[*482]  though  the  party  may  make  *his  application  founded 
on  his  own  deposition,  it  does  not  follow,  by  any 
means,  that  this  deposition  is  to  be  conclusive.  The  facts 
alleged  as  the  grounds  of  the  application,  being  open  to  be 
contradicted  by  the  prosecution,  if  false,  might  be  shown  to 
be  so,  and  hence  it  is  not  rational  to  suppose  that  the  applica- 
tion would  be  made  on  an  alleged  state  of  facts  easily  dis- 
proved, or  rendered  doubtful  by  counter  evidence,  because  of 
the  certainty  of  failure  in  all  such  cases. 

In  the  case  before  us  how  easily  could  the  prosecution  have 
produced  the  juror,  Burnside,  or  his  deposition,  and  proven 
his  non-alienship  if  such  was  the  fact ;  and,  in  case  of  his  ab- 
sence, the  evidence  of  his  neighbors  to  the  same  fact.  This, 
we  presume,  would  have  readily  occurred  to  the  prosecution 
as  the  most  efficient  means  of  removing  the  alleged  objection 
to  the  verdict.  Not  having  done  go  is  it  not  the  fair  inference 
therefrom  that  the  deposition  of  the  prisoner  is  true  ?  This 
deposition  was,  doubtless,  only prima  facie  evidence  of  the 
fact ;  but  does  not  the  failure  or  omission  to  produce  the  proof 
so  entirely  within  the  ability  of  the  prosecution  to  adduce, 
(if  the  deposition  of  the  prisoner  was  untrue  in  point  of  fact,) 
render  it  a1  most  conclusive?  We  must  presume,  then,  under 
this  state  of  facts,  that  the  alienship  of  the  juror  would  have 
been  continued  by  the  juror  himself;  otherwise  it  seeins  to  ug 

GOB 


DECEMBER  TERM,  1838.  482 

Guykowski  v.  The  People. 

that  an  attempt  would  have  been  made  to  disprove  it  by  some 
of  the  means  suggested. 

This  deposition  of  the  juror  in  support  of  his  verdict  on  a 
point  entirely  disconnected  with  his  acts,  or  the  motives  for 
his  conduct  as  a  juror,  wTould  not  have  been  objectionable  on 
the  grounds  on  which  it  has  been  decided  that  a  juror's  testi- 
mony can  not  be  received  to  impeach  his  verdict. 

It  may  also  be  urged  that  the  exception  to  the  juror  is  tech- 
nical, and  that,  as  no  objection  appears  on  the  merits,  the  con- 
viction should  be  sustained. 

We  can  not  think  that  an  objection  to  a  trial  and  conviction 
produced  by  the  agency  of  one  whom  the  law  has  positively 
prohibited  from  sitting  as  a  juror  in  a  cause  can  be  considered 
technical.  It  is  a  matter  of  substance,  and  may  be  considered 
an  inquiry  whether  one  who  is  excluded  has  taken  on  himself 
to  pronounce  on  the  law  and  the  facts  of  the  case  without  not 
only  the  authority  of  law  but  against  such  authority. 

The  presumed  assent  of  the  accused  to  the  juror's  being  one 
of  his  triors  can  not  surely  invest  the  juror  with  the  exercise 
of  a  power  which  the  law  has  declared  him  incapable  of  ex- 
ercising. Suppose  the  case  of  a  female  imposed  on  the  Court, 
and  parties  without  their  privity,  or  even  with  it,  could  such 
a  person  be  a  competent  juror  ?  Would  not  all  deny  the 
affirmative  in  such  a  case  ?  And  although  such  an 
opinion  would  be  rendered  *  without  hesitation,  the  [*483] 
disqualification  in  this  case  is  not  less  conclusive. 

It  is  a  false  supposition,  to  conclude,  that  the  silence  of  the 
accused  could  confer  a  power  on  the  person  sworn  as  the 
juror,  to  sit  and  determine  the  cause,  when  his  inability  to 
legally  act  is  so  apparent.  Suppose  that  the  alienage  of  the 
juror  had  been  developed  to  the  Court,  when  the  juror  was 
called,  and  about  to  be  sworn,  can  it  be  imagined  that  the 
Court  would  have  hesitated  to  have  instantly  set  him  aside, 
and  declared  him  incompetent  ?  We  think  not.  Does  then 
the  time  of  the  discovery  of  the  juror's  incompetency,  alter 
the  principle,  or  the  reason  of  the  decision  ?  In  Massachu- 
setts it  has  been  decided,  that  a  person  who  was  a  member  of 
the  grand  jury,  and  sat  and  found  the  bill  of  indictment,  in 
a  criminal  case,  was  an  incompetent  juror  on  the  trial  by 
the  petit  jury,  on  the  same  indictment,  and  a  new  trial  was 
granted  for  such  a  cause.  There  are,  also,  many  cases  where 
partial  jurors,  who  had  formed  and  expressed  opinions  on  the 
guilt  of  the  accused,  before  trial,  having  rendered  verdict 
against  him,  have  been  set  aside,  the  knowledge  of  the  cause 
of  objection  not  having  been  known  or  discovered  until  after 
conviction. 

509 


483  VANDALIA. 


Guykowski  v.  The  People. 


In  the  case  of  the  Indian,  Nomaque,  decided  at  the  Decem- 
ber term  of  this  Court  in  1825,  (Breese,  109,)  we  have  said 
that  "  The  prisoner,  in  a  capital  case,  must  be  considered  as 
standing  on  all  his  rights.  He  can  not  be  considered  as  waiv- 
ing anything,  nor  could  his  counsel  do  it  for  him ; "  and  the 
case  of  The  People  v.  McRay,  (18  Johns.  212,)  is  cited,  as  con- 
clusive authority  to  sustain  such  position.  In  this  case,  which 
was  a  criminal  one,  the  venire  was  without  a  seal,  and  al- 
though the  prisoner  had  challenged  many  of  the  jury  who 
were  summoned  under  it,  still  the  Court  held,  in  that  case, 
that  it  was  a  nullity,  and  granted  a  new  trial.  The  principles 
on  which  these  cases  were  decided  are  applicable  to  the  pres- 
ent, and  apply  with  full  force. 

The  argument  of  inconvenience  which  might  result  from 
granting  a  new  trial,  ought  not  to  be  addressed  to  those  whose 
duty  compels  them  to  declare  the  very  law  of  the  case,  and 
more  especially  should  its  influence  be  unfelt  where  no  dis- 
cretion is  reposed. 

Much  as  this  court  may  regret  the  necessity  which  imposes 
on  it  the  duty  of  reversing  a  decision,  where  the  trial  on  all 
the  facts  may  be  presumed  to  have  been  not  only  deliberately 
and  impartially  had,  but  freely  investigated,  still  it  is  bound 
to  declare  the  law  as  it  is  conscientiously  believed  to  exist, 
without  regard  to  the  possible  inconvenience  which  may  re- 
sult from  a  new  trial. 

The  objections  in  arrest  of  judgment  are  considered  not 
tenable ;  and  if,  as  formal  ones,  they  possessed  grounds 
[*48-i]  of  Consideration,  a  part  of  them  should  have  been 
raised  before  pleading  to  the  indictment,  as  the  153d 
section  of  the  criminal  code  requires.  That  portion  of  them 
which  were  made  before  pleading,  which  include  the  objection 
to  the  precept,  are  considered  inconclusive.  The  precept  for 
the  grand  jury,  which  was  filed  nuno  pro  tune,  was  for  the 
benefit  of  the  prisoner,  at  whose  instance  the  Court  had  been 
assembled,  and  as  he  challenged  the  array,  and  afterward 
withdrew  it,  he  must  be  considered  as  regarding  the  objection 
without  force.  It  was  but  to  render  more  certain  and  per- 
fect the  proceedings  instituted  for  his  benefit,  and  which 
had  been  adopted  for  the  speedy  trial  which  he  had  sought. 

For  the  reasons  assigned,  we  are  of  opinion  that  the 
judgment  of  the  Circuit  Court  of -Clinton  county  should  be 
reversed,  a  supersedeas  to  the  execution  of  the  sentence  of 
death  awarded,  and  a  new  trial  be  had  in  the  Clinton  Circuit 
Court,  and  that  a  venire  facias  de  now  be  awarded  by  that 
Court,  for  such  purpose. 

Judgment  reversed. 
MO 


DECEMBER  TERM,  1838.  484 

Bliss  et  af.  v.  Penyman. 

NOTE  BY  SCAMMON.  See  the  case  of  John  Stone  v.  The  People,  decid- 
ed at  June  term,  1840,  where  it  is  held,  that  irregularities  in  summoning 
a  grand  jury,  must  be  taken  advantage  of  by  a  challenge  of  the  array,  or 
a  motion  to  quash  the  indictment  found  by  the  jurors. 

Objections  to  jurors,  if  known,  must  be  made  before  trial.  Wickersham 
v.  The  People,  ante  128. 


BLISS,  WILLIAMS  &  Co.,  plaintiffs  in  error,  v.  WILLIAM 
FERRYMAN,  defendant  in  error. 

Error  to  White. 

INFANCY— WITNESSES— VARIANCE.— Where  the  plaintiff  brought  an 
action  before  a  justice  of  the  peace,  upon  a  bond  made  by  the  defendant 
while  an  infant,  and  upon  the  trial  the  defendant  pleaded  and  proved  his 
infancy  in  bar  ;  and  thereupon  the  plaintiff  made  oath  that  he  knew  of  no 
witness  by  whom  he  could  prove  the  defendant's  agreement,  since  he  became 
of  age,  to  pay  him  $18  in  full  of  the  bond,  except  by  his  own  oath,  or  that 
of  the  defendant,  and  prayed  that  the  defendant  might  be  sworn,  which  the 
Court  refused  to  allow:  Held  that  the  Court  decided  correctly,  because  the 
proof,  if  admitted,  would  have  proved  a  different  cause  of  action  from  that 
upon  which  suit  was  brought. 

Semite,  That  an  infant  can  not  bind  himself  by  bond. 

NEW  PROMISE. — Where  a  plaintiff  relies  upon  a  new  promise  made  after 
the  defendant  became  of  age — the  original  contract  having  been  made  dur- 
ing infancy — he  should  declare  on  the  new  contract. 

THIS  action  was  originally  instituted  before  a  justice  of  the 
peace  of    White  county,    who   rendered    judgment  for   the 
plaintiffs  in  error,  for  the  amount  of  the  note  sued  on.     The 
defendant  appealed  to  the  Circuit  Court,  where  the 
cause  was  tried  at  the  *October  term,  1837,  before  the     [*4S5] 
Hon.  Justin  Harlan,  and  judgment  rendered  for  the 
defendant  for  costs.     On  the  trial  in  the  Court  below,  the 
following  bill  of  exceptions  was  taken : 

"  Be  it  remembered  that  on  the  trial  of  this  case,  which, 
was  brought  upon  the  following  note,  viz. — 'Township, 
White  county,  111.,  1835.  By  the  tirst  day  of  January  next, 
1836,  for  value  received  I  promise  to  pay  Bliss,  Williams  & 
Co.  or  their  order,  twenty-eight  dollars  with  use.  _  If  one 
half  of  the  above  note  is  paid  \vhen  due,  then  a  credit  is  to  be 
given  on  the  other  half  for  one  year  longer,  1837.  This 
note  was  given  for  a  wind  mill ;  if  the  signer  isjiot  suited 
with  this  mill,  he  is  to  return  the  same  by  the  tirst  day  of 
March  next,  at  Bliss,  Williams  &  Co.'s  factory  in  New  Haven, 
and  they  are  to  furnish  him  a  new  mill  at  that  place,  provided 
the  signer  takes  good  care  of  the  mill  and  keeps  the  same  in 
his  own  bam.  The  above  note  is  to  be  paid  at  P.  Slater's 

511 


4>:>  V  AND  ALIA. 


Bliss  et  al.  v.  Ferryman. 


store  in  New  Haven.     Witness  my  hand  and  seal  this  9th  day 
of  February,  1835. 

WILLIAM  FERRYMAN,  [L.  s.] 
Attest,  THOMAS  WOODS.' 

The  defendant  pleaded  infancy,  and  proved  that  at  the  time 
of  executing  the  note  sued  on,  he  was  under  21  years  of 
age.  Whereupon  the  plaintiff  introduced  Elisha  Smith,  a 
witness,  who  proved  that  after  the  said  defendant  came  of 
full  age,  he  told  him  (the  witness)  that  he  had  had  a  conversa- 
tion with  Williams,  one  of  the  plaintiffs,  who  had  proposed  to 
receive  $18  in  full  of  the  note,  and  that  he,  Ferryman,  be- 
lieved he  would  pay  it  to  plaintiffs  if  he  could  procure  the 
money,  and  if  he  could  get  the  money  he  believed  he  would 
go  and  see  Williams  and  pay  it  to  him,  but  the  witness  did 
not  understand  from  defendant  that  he  had  agreed  with 
Williams,  when  they  were  together,  to  pay  said  sum  of  $18 
in  full  of  said  note.  Whereupon  the  plaintiff,  Williams,  of- 
fered himself  to  be  sworn,  and  was  sworn,  that  he  had  no  witness 
and  knew  of  no  witness  by  whom  he  could  prove  the  de- 
fendant's agreement  with  him  to  pay  him  $18  in  full  of  said 
note,  after  he  came  of  full  age,  except  by  his  own  oath,  or  that 
of  said  Ferryman,  and  prayed  that  said  Ferryman  might  be 
sworn,  which  the  Court  refused  to  allow,  on  the  ground  that  such 
evidence  coulfl  not  be  considered  as  proving  any  demand,  dis- 
count, or  set-off  in  the  sense  of  the  statute  in  such  case  made 
and  provided.  To  which  opinion  of  the  Court  in  refusing  to 
hear  the  testimony  of  said  Ferryman,  or  the  plaintiff,  Will- 
iams, the  plaintiff,  by  his  counsel,  excepts  and  prays  this  his 
bill  of  exceptions  may  be  sealed  and  allowed,  and  it  is  done  ac- 
cordingly. 

J.  HARLAN.     [L.  s.]" 

H.  EDDY,  for  the  plaintiffs  in  error,  contended  that 
[*486]     a   ^"conditional  promise  was  good.     4  Am.  Dig.  325. 
Part  payment,  or  promise  to  pay  part,  will  bind  the 
defendant  to  that  extent,  but  no  further.     2  Stark.  Ev.  725. 

The  Court  should  have  required  the  defendant  to  be  sworn 
as  a  witness,  or  else  admitted  the  oath  of  the  plaintiff,  Will- 
iams. R.  L.  409.  (Gale's  Stat.  420.) 

E.  WEBB,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

This  case  originated  before  a  justice  of  the  peace.     The  bill 

of   exceptions  taken  on  the  trial  contains  all  the  proceedings, 

from  which  it  appears  that  the  plaintiff  sued  the  defendant  on 

512 


DECEMBER  TEEM,  1838.  486 

Bliss  et  al.  r.  Ferryman. 

a  bond  given  by  him  for  $28.  The  defendant  pleaded  infancy, 
and  sustained  his  plea  by  proof.  The  plaintiff  then  set  up  a 
promise  made  by  the  defendant  after  he  came  of  age,  to  pay 
the  plaintiff  $18  in  lieu  of  the  bond,  but  having  failed  in  es- 
tablishing this  promise  by  disinterested  testimony,  he  applied 
to  the  Court  (under  the  statute  making  the  oath  of  the  party 
evidence  in  certain  cases)  to  have  the  defendant  sworn  to  prove 
his  subsequent  promise.  The  Court  decided  the  evidence  to 
be  inadmissible,  and  refused  to  allow  the  party  to  be  sworn. 
To  reverse  which  opinion,  this  writ  of  error  is  prosecuted.  It 
is  clear  that  the  plaintiff  has  mistaken  the  contract  upon 
which  he  ought  to  have  brought  his  action,  and  that  the 
evidence  which  he  offered  was  properly  rejected.  This  evi- 
dence went  to  establish  a  different  and  distinct  cause  of  action, 
from  that  upon  which  suit  was  brought.  The  action  was  in- 
stituted upon  a  contract  under  seal,  for  the  payment  of  a  specific 
sum  of  money,  while  that  sought  to  be  established  on  the 
trial,  by  the  testimony  which  was  rejected,  was  a  parol  agree- 
ment, entered  into  at  a  different  time,  and  for  the  payment  of 
a  different  amount.  The  admission  of  such  testimony  would 
not  only  have  changed  the  character  of  the  action,  and  the 
nature  of  the  defense,  but  would  have  been  a  surprise  upon 
the  defendant.  The  pkintiff  should  have  brought  his  ac- 
tion upon  the  subsequent  parol  promise,  and  not  upon  the 
bond.  An  infant  can  not  bind  himself  by  bond,  even  for 
necessaries,  and  when  the  plaintiff  relies  upon  a  new  prom- 
ise made  after  full  age,  it  is  always  necessary  that  he  should 
declare  upon  the  simple  contract,  which  the  new  promise 
was  meant  to  establish ;  and  the  infant  will  then  be  bound 
to  thi-  extent  of  his  promise,  even  if  the  consideration 
of  the  original  contract,  (for  which  the  latter  is  substituted,) 
was  not  for  necessaries. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


VOL.  1-3 


513 


487  VANDALIA. 


Waldo  et  al.  r.  Averett. 


[*487]    *  JAMES  E.WALDO  and  DANIEL  WALDO,  appel- 
lants, v.  NATHAN  AVERETT,  appellee. 

Appeal  from  Morgan. 

PRACTICE — EXECUTION  OF  APPEAL  BOND. — Itis  not  necessary  that  the 
bond  given  on  an  appeal  from  the  judgment  of  a  justice  of  the  peace  to  the 
Circuit  Court,  should  be  entered  into  before  the  clerk  of  said  Court,  or  in 
his  office.  It  is  sufficient  if  it  be  duly  executed  and  filed  in  the  clerk's  office. 

The  issuing  of  a  summons  and  supersedeas,  on  appeal  from  a  judgment 
of  a  justice  of  the  peace,  is  evidence  that  the  appeal  bond  is  approved  by 
the  clerk. 

On  an  appeal  from  the  judgment,  of  a  justice  of  the  peace  to  the  Circuit 
Court,  if  the  bond  be  ever  so  defective,  the  Court  nevertheless  should  allow 
a  good  and  sufficient  bond  to  be  filed. 

AVERETT  recovered  a  judgment  against  the  appellants,  be- 
fore a  justice  of  the  peace  of  Morgan  county,  from  which 
they  appealed  to  the  Circuit  Court.  At  the  iirst  term  of  the 
Circuit  Court  after  the  appeal  was  taken,  the  appellee  moved 
to  dismiss  the  appeal  because  it  did  not  appear  from  the  ap- 
peal bond  that  it  was  entered  into  in  the  office  of  the  clerk, 
or  that  the  bond  had  been  approved  by  the  clerk,  as  required 
by  law.  The  appellants  entered  a  cross-motion  that  the  clerk 
have  leave  to  attach  his  official  certificate  to  the  bond,  show- 
ing the  manner  of  its  execution ;  which  motion  the  Court  sus- 
tained, provided  the  facts  would  warrant  the  clerk  in  making 
the  certificate.  The  deputy  clerk,  who  received  and  filed  the 
bond,  being  called  and  sworn,  stated  that  the  bond  was  not 
entered  into  before  him,  nor  the  security  therein  approved  by 
him  ;  but  that  the  bond  was  filled  up  by  him,  and  given  to  the 
appellants  to  be  executed  by  the  parties,  he  telling  them  it 
must  be  executed  in  presence  of  a  witness.  The  bond  was 
afterward  handed  to  him  by  the  appellants,  with  the  names 
of  the  obligors  subscribed  thereto,  and  by  him  received  and 
filed.  The  sureties  did  not  appear  before  him,  nor  did  they 
execute,  or  acknowledge  the  execution  of  the  said  bond  be- 
fore him. 

Upon  this  statement,  the  Court  decided  that  the  appeal  bond 
was  insufficient,  and  that  the  clerk  would  not  be  authorized  to 
annex  his  official  certificate  to  the  bond,  showing  that  it  was 
taken  and  approved  by  him,  and  dismissed  the  appeal.  The 
appellants  excepted  to  this  opinion  of  the  Court. 

The  cause  was  dismissed  at  the  November  term,  1837. 

CITED:  Permission  to  file  amended  bill.    20  111.  264;  78  111.  524;  11  111. 
546;  12  Bradw.  29. 
514 


DECEMBER  TERM,  1838.  487 

Waldo  et  al.  v.  Averett. 

WM.  THOMAS,  for  the  appellants,  cited  Dedman  v.  Harber, 
ante  254. 

M.  MCDONNELL,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  appeal  from  the  judgment  of  a  justice 
of  the  *peace  to  the  Circuit  Court,  and  by  that  Court     [*488] 
dismissed,   because  of  the  supposed  insufficiency  of 
the  appeal  bond.     It  appears  by  the  bill  of  exceptions,  that 
the  bond  was  written  by  the  clerk,  and  handed  to  the  appel- 
lants to  be  signed  by  them  and  their  sureties,  which  was  ac- 
cordingly done,  (though  not  in  the  office,)  and  the  bond  lodged 
in  the  office  with  the  clerk,  upon  which  he  issued  a  superse- 
deas  to  the  justice. 

This,  we  are  of  opinion,  was  a  substantial  compliance 
with  the  provision  of  the  statute  that  requires  the  appeal 
bond  to  be  entered  into  in  the  office  of  the  clerk,  and  the  security 
to  be  approved  by  him.  Although  the  bond  was  not  signed 
in  the  clerk's  office,  it  was  lodged  there,  as  the  law  requires, 
and  must  have  been  approved  by  the  clerk  ;  otherwise  he  had 
no  authority  to  allow  an  appeal,  and  to  issue  a  supersedeas  en- 
joining the  justice  from  proceeding  in  the  cause.  But  if  it  is 
admitted  that  the  bond  was  ever  so  defective,  the  Court  never- 
theless erred  in  dismissing  the  appeal  ;  it  ought  to  have 
allowed  the  motion  of  the  appellants  to  file  a  good  bond.  The 
statute  expressly  provides  for  a  case  like  this,  by  declaring 
that  the  appellant  shall  in  no  wise  be  prejudiced  by  reason  of 
any  informality  or  insufficiency  of  the  appeal  bond,  provided  he 
will,  in  a  reasonable  time,  to  be  fixed  by  the  Court,  execute 
and  file  in  the  office  of  the  clerk,  a  good  and  sufficient  one. 
This  provision  is  conclusive  as  to  the  right  of  the  appellant  to 
file  a  new  bond,  when  the  first  is  adjudged  by  the  Court  to 
be  insufficient. 

The  decision  of  the  Court  below  is  therefore  reversed  with 
costs,  and  the  cause  remanded. 

Judgment  reversed. 

NOTE  BY  SCAMMON.  See  Swafford  r.  The  People,  ante  289;  Grain  v. 
Bailey  et  al..  ante  321;  Yunt  v.  Brown,  ante  264;  Hubbard  et  al.  v.  Freer, 
ante  467,  and  note. 

615 


488  VANDALIA. 


Gordon  v.  Knapp  et  al. 


WILLIAM  W.  GOKDON,  appellant,  v.  KNAPP  and  POGUE, 

appellees. 

Appeal  from  Morgan. 

APPOINTMENT  OF  CONSTABLE,  pro  tern.  —  STATUTE  —  CONSTRUCTION.  — 
The  appointment  of  a  constable  pro  tern.,  by  a  justice  of  the  peace,  to  execute 
process,  under  §  51  of  the  "Act  concerning  Justices  of  the  Peace  and  Con- 
stables," must  be  made  by  indorsement  upon  the  back  of  the  process.  An 
appointment  upon  a  separate  piece  of  paper,  is  not  a  compliance  with  the 
act, 

The  statute  specifies  but  two  cases  in  which  a  justice  of  the  peace  is  au- 
thorized to  appoint  a  constable  pro  tern.  The  one  is  to  execute  criminal 
process,  where  the  accused  is  likely  to  escape;  and  the  other  is  to  execute 
civil  process,  where  goods  and  chattels  are  about  to  be  removed  before  an 
application  can  be  made  to  a  qualified  constable.  In  the  latter  case,  as  a 
pre-requisite  to  the  power  of  appointment,  it  must  be  shown  that  goods  and 
chattels  are  about  to  be  removed. 

A  justice  of  the  peace  can  not  appoint  a  constable  pro  tern,  to 
[*489]      serve  a  summons  *or  other  personal  notice  in  a  civil  suit.    The 
statute  refers  to  an  execution  or  attachment. 

Semble,  That  where  a  justice  of  the  peace,  or  other  inferior  officer  acts  in 
a  case  where  he  is  not  authorized  to  act,  the  proceedings  are  not  only  irregu- 
lar, but  void. 


.  THOMAS,  for  the  appellant. 
M.  MCDONNELL,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court  : 
This  was  a  suit  brought  before  a  justice  of  the  peace  upon 
an  open  account.  Judgment  was  rendered  by  default  against 
the  appellant,  for  $95,  on  the  6th  of  May,  1837,  from  which 
he  appealed  to  the  Circuit  Court,  and  that  Court  dismissed 
the  appeal  for  want  of  jurisdiction.  From  this  decision  an 
appeal  was  taken  to  this  Court,  and  it  is  assigned  for  error, 
that  the  Court  dismissed  the  appeal,  and  also  that  it  did  not 
reverse  the  judgment  of  the  justice.  Upon  what  view  of  the 
case  the  Court  came  to  the  conclusion  that  it  had  no  jurisdic- 
tion is  left  to  conjecture,  as  no  reason  for  such  opinion  is 
assigned.  It  is  clear  that  the  opinion  of  the  Court  upon  this 
point  is  not  warranted  by  the  facts  in  the  case.  The  suit  is 
for  a  debt  claimed  to  be  due  upon  an  open  account  not  exceed- 
ing one  hundred  dollars,  being  one  of  a  class  of  cases  over 
which  the  statute  expressly  confers  jurisdiction  upon  justices 
of  the  peace.  The  sufficiency  of  the  next  error  assigned, 
which  is  the  refusal  of  the  Circuit  Court  to  reverse  the  judg- 

CITED:  113111.288. 

616 


DECEMBER  TERM,  1838.  489 

Gordon  v.  Knapp  et  al. 

ment  of  the  justice,  depends  upon  the  legality  of  the  manner 
m  which  the  constable  was  appointed,  and  also  upon  the  au- 
thority of  the  justice  to  appoint  a  constable  in  any  manner  in 
this  case.  It  appears  that  the  process  was  a  summons,  which 
,  was  served  by  the  constable  pro  tern,  appointed  by  the  justice 
under  authority  of  the  "  Act  concerning  Justices  of  the  Peace 
and  Constables."  This  act  authorizes  a  justice  to  appoint  a 
constable  pro  tern,  in  a  criminal  case,  (R.  L.  399,  §  51 ;  Gale's 
Stat.  412,  §  51,)  where  there  is  a  probability  that  a  person 
charged  with  an  indictable  offense  will  escape,  and  in  a  civil 
case  where  goods  and  chattels  are  likely  to  be  removed  before 
application  can  be  made  to  a  qualified  constable.  It  also  pro- 
vides that  the  appointment  in  such  cases  shall  be  made  by  a 
written  indorsement  on  the  back  of  the  process  under  the  seal 
of  the  justice.  This  indorsement  may  be  regarded  as  the  com- 
mission of  the  special  constable,  without  which  his  execution 
of  the  process  intrusted  to  him  would  be  illegal  and  void. 
In  this  case  no  indorsement  deputing  any  one  to  act  as  con- 
stable was  made  upon  the  process  ;  but.the  temporary  appoint- 
ment was  made  upon  a  separate  and  distinct  paper.  This,  it 
would  seem,  was  not  a  compliance  with  the  statute.  The  ob- 
ject of  the  law  in  requiring  the  appointment  to  be  upon  the 
process  was  probably  to  apprise  those  whose  obedi- 
ence it  commands  of  the  authority  *under  which  the  [*490] 
officer  acts.  This  is  in  accordance,  too,  with  the  gen- 
eral principle  which  requires  one  acting  under  a  special  ap- 
pointment to  show  his  authority. 

The  want  of  authority  in  the  justice  to  appoint  a  constable  to 
serve  a  summons  presents  a  stronger  objection  to  the  legality 
of  the  notice  to  the  defendant  below  than  the  mode  of  making 
it  in  this  case.  The  statute  specifies  but  two  cases  in  which 
a  justice  is  authorized  to  appoint  a  constable  pro  tern.  The 
one  is  to  execute  criminal  process  where  the  accused  is  likely 
to  escape ;  and  the  other  is  to  execute  civil  process  where 
goods  and  chattels  are  about  to  be  removed  before  application 
can  be  made  to  a  qualified  constable ;  and  in  the  latter  case,  as 
a  pre-requisite  to  the  power  of  appointment,  it  must  be  shown 
that  goods  and  chattels  are  about  to  be  removed.  In  the  pres- 
ent case  it  does  not  appear  that  any  evidence  of  a  probability 
of  the  removal  of  property  was  adduced.  It  is  also  manifest 
from  this  provision  that  the  process  contemplated  by  the  stat- 
ute, and  which  the  justice  is  authorized  to  depute  an  individ- 
ual to  execute,  is  not  a  summons  to  the  individual  or  other 
personal  notice,  for  that  would  not  prevent  the  removal  of 
property  beyond  the  jurisdiction  of  the  Court,  but  it  is  an  ex- 
ecution or  attachment  against  the  personal  property  about  to 


490  VANDAL1A. 


Smith  v.  Shultz. 


be  removed  in  order  to  secure  to  a  creditor  the  means  of  satis- 
fying his  demand.  And,  as  a  justice  is  an  officer  of  inferior  and 
special  powers,  the  existence  of  the  causes  which  would  justify 
him  in  deputing  an  officer  to  execute  process  should  be  shown  ; 
and  the  kind  of  process  and  the  mode  of  appointing  the  officer  to 
execute  it  should  be  in  strict  accordance  with  the  statute,  other- 
wise the  appointment  is  void,  and  the  service  of  the  process  a  nul- 
lity. In  this  case  the  constable  was  not  appointed  as  the  law 
requires,  nor  was  the  process  such  as  he  could  be  created  to 
execute  ;  and  no  cause  having  been  shown  which  could  justify 
the  appointment  and  the  issuing  of  the  process,  the  whole  pro- 
ceeding of  the  justice  was  irregular  and  void,  and  ought  to 
have  been  reversed  by  the  Circuit  Court. 

It  is  therefore  ordered  that  the  judgment  of  the  Circuit 
Court  be  reversed  with  costs,  and  also  that  of  the  justice  for 
irregularity. 

Judgment  reversed. 


JAMES  SMITH,  plaintiff  in  error,  v.  JOHN  SHULTZ,  de-( 
fendant  in  error. 

Error  to  Vermilion. 

APPEAL — NEW  TRIAL — STATUTE. — Since  the,  statute  of  1837,  an  appeal 
will  lie  from  the  decision  of  a  Circuit  Court  refusing  an  application  for  a 

new  trial.* 

[*491J  NEW  TRIAL — NEWLY  DISCOVERED  EVIDENCE. — *A  court  will 

not  grant  a  new  trial,  when,  in  its  opinion,  substantial  justice  has 
been  done  between  the  parties,  though  the  law  arising  on  the  evidence 
would  have  justified  a  different  result;  nor  will  it,  upon  the  application 
of  the  defendant,  afford  him  an  opportunity  of  introducing  newly  dis- 
covered testimony,  which  is  not  conclusive  in  its  character,  or  is  merely 
cumulative. 

LARCENY. — Every  taking  of  the  property  of  another,  without  his  knowl- 
edge or  consent,  does  not  amount  to  larceny.  To  make  it  such,  the  taking 
must  be  accompanied  by  circumstances  which  demonstrate  a  felonious  in- 
tention. 

THIS  cause  was  tried  at  the  September  term,  1837,  of  the 
Vermilion  Circuit  Court.  A  verdict  for  $400  was  rendered 
for  the  defendant  in  error. 

CITED:  When  error  will  not  reverse.  21111.39;  18  Id.  454.  Verdict 
not  disturbed,  when.  23  Id.  450.  New  trial,  when  not  granted.  53  Id. 
857;  40  Id.  222.  Cumulative  evidence.  47  Id.  380;  69  Id. 359;  65 Id.  151. 

^Appeal  and  error — What  amounts  to  final  judgment  or  decree  for 
purposes  of.    See  McKinstry  v.  Pennoyer,  ante  319,  note. 
518 


DECEMBER  TERM,  1838.  491 

Smith  v.  Shultz. 

S.  McRo BEETS  and  A.  C.  FKENCH,  for  the  plaintiff  in  error. 
BROWN  and  I.  P.  WALKEK,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
,  This  was  an  action  on  the  case  for  slander.  The  plaintiff  in 
the  Court  below  sued  the  defendant  for  charging  him  with 
having  stolen  his  corn  and  oats.  The  defendant  pleaded  not 
guilty,  and  gave  notice  under  the  statute,  that  on  the  trial  of 
the  cause  he  would  prove  that  the  plaintiff  did  take  his  corn 
and  oats  without  his  knowledge  or  consent;  and  also  that  he 
took  it  without  his  knowledge  or  consent,  in  the  night  time, 
and  fed  it  to  his  hogs  and  horses. 

Upon  this  plea  and  notice,  the  parties  went  to  trial,  and  a 
verdict  was  found  for  the  plaintiff.  The  defendant  then 
moved  the  Court  for  a  new  trial,  upon  the  ground  of  newly 
discovered  evidence.  The  affidavit,  which  was  made  by  the 
defendant,  sets  out  that  he  believes  that  since  the  trial  of  the 
cause  he  has  discovered  that  he  can  prove  by  Joshua  Law  and 
one  other  witness,  that  the  plaintiff  told  one  or  both  of  them 
that  he  did  take  the  corn  of  the  defendant,  without  his  knowl- 
edge or  consent.  The  Court  overruled  the  motion  for  a  new 
trial,  from  which  decision  the  defendant  has  taken  this  appeal. 
At  common  law,  the  decision  of  a  court  upon  an  application 
addressed  to  its  discretion,  can  not  be  assigned  for  error,  and 
such  has  been  the  uniform  decision  of  this  Court.  But  by  an 
act  of  the  legislature,  this  principle  of  law  has  been  changed, 
and  an  appeal  will  now  lie  from  the  decision  of  a  Court  refus- 
ing an  application  for  a  new  trial.  The  question  ^then  is,  has 
the  Court  erred  in  the  exercise  of  its  legal  discretion,  in  over- 
ruling the  motion  made  in  this  case.  This  should  be  clearly 
made  out,  to  warrant  a  reversal  of  its  opinion,  upon  a  point,  in 
relation  to  which  it  has  the  best  opportunity  of  forming^ 
correct  opinion.  A  court  will  not  grant  a  new  trial,  when,  in 
its  opinion,  substantial  justice  has  been  done  between  thejiar- 
ties,  though  the  law  arising  on  the  evidence  would  have  justi- 
fied a  different  result ;  nor  will  it,  upon  the  application  of  the 
defendant,  afford  him  an  opportunity  of  introducing 
newly  *discovered  testimony,  which  is  not  conclusive  [*492] 
in  its  character,  or  is  merely  cumulative.  The  evi- 
dence alleged  by  the  defendant  to  have  been  discovered  subse- 
quently to  the  trial,  would  not,  unaided  by  other  circumstances, 
constitute  a  defense.  The  allegation  in  the  declaration  is  that 
the  defendant  charged  the  plaintiff  with  larceny  in  steal  ing  his 
corn  and  oats.  The  admissions  of  the  plaintiff,  expected  to  be 
proved,  are,  that  he  did  take  the  corn  of  the  defendant  with. 


492  VANDALIA. 


Pickering  v.  Orange. 


out  his  knowledge  or  consent.  This  is  certainly  good  evidence 
as  far  as  it  goes;  but  it  does  not  go  far  enough  to  establish 
upon  the  plaintiff  the  guilt  of  larceny.  Every  taking  of  the 
property  of  another,  without  his  knowledge  or  consent,  does 
not  amount  to  larceny.  To  make  it  such,  the  taking  must  be 
accompanied  by  circumstances  which  demonstrate  a  felonious 
intention.  No  evidence  of  such  intention  is  alleged  to  have 
been  discovered,  and  the  property  may  have  been  taken  under 
a  claim  of  title,  or  under  other  circumstances  which  would 
rebut  all  presumption  of  felonious  intention.  The  bill  of 
exceptions  does  not  contain  the  testimony  given  on  the  trial ; 
we  can  not  therefore  know  what  evidence,  or  whether  any,  was 
given  by  the  defendant  under  his  notice  of  justification.  If 
none  was  given  tending  to  justify,  the  Court  very  properly 
overruled  the  motion  for  a  new  trial,  because  the  newly  dis- 
covered evidence  does  not,  of  itself,  amount  to  a  justification ; 
and  if  on  the  other  hand  any  testimony  tending  to  make  out 
this  defense  was  given  on  the  trial  which  was  had,  then  that 
subsequently  discovered  is  merely  cumulative,  and  would  not 
have  justified  the  Court  in  awarding  a  new  trial,  in  order  to 
re-adjudicate  upon  a  cause,  with  the  result  of  which  it  is  satis- 
fied. 

The  decision  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON.     See  Harmison  v.  Clarke,  ante  131 ;  Garner  et  al.  ». 
Crenshaw,  ante  143;  Wickersham  v.  The  People,  ante  128,  and  note. 


WILLIAM  PICKERING,  appellant,  v.  DANIEL  ORANGE, 
^  appellee. 

i 

Appeal  from  Edwards. 

DOGS — LIABILITY  OF  OWNERS.— The  law  is  well  settled,  that  where  a 
person  negligently  keeps  a  dog  or  other  animal,  which  is  known  to  him  to 
be  of  a  savage  and  ferocious  disposition,  he  is  accountable  for  all  the  injury 
it  may  do  to  other  animals.* 

THIS  cause  was  tried  at  the  April  term,  1838,  of  the  Ed- 
wards Circuit  Court,  before  the  Hon.  Justin  Harlan  and  a 
jury.  A  verdict  was  rendered  for  the  defendant  in  the  Court 
below,  the  appellee. 

*Dogs — Liability  of  owners  for  trespasses  of.  See  Pickering  v.  Orange 
ante,  338,  note. 

620 


DECEMBER  TERM,  1838.  493 

Pickering  v.  Orange. 

*W.  J.   GATEWOOD,  for  the  appellant,  cited  Lord     [*493] 
Raymond's   Reports ;  1  Pirtle,  95 ;  2  do.  105-10 ;  1 
Bibb,  265  ;  Wendell,  249. 

A.  COWLES,  for  the  appellee. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  on  the  case  for  keeping  dogs  which  had 
been  used  to  bite  mankind,  and  to  chase,  worry,  and  kill  other 
animals  besides  sheep,  and  which  had  killed  divers  sheep  of  the 
plaintiff.  On  the  trial  of  the  cause,  the  judge  of  the  Circuit 
Court  of  Edwards  county  gave  the  following  instruction : 
"  That  if  defendant's  dogs  had  been  used  to  kill  or  worry 
sheep,  and  the  defendant  had  notice  thereof,  then  it  was  a 
question  of  law,  and  he  was  liable  for  all  the  damages  they 
might  do  to  the  sheep  of  another,  after  such  notice ;  but  if 
they  had  been  used  to  kill  or  to  chase,  bite,  and  worry  other 
animals,  the  property  of  another,  or  to  bite  mankind,  and  the 
defendant  knew  it,  it  was  a  question  of  fact  for  the  jury  ;  and 
if,  therefore,  they  found  the  ferocity  of  the  dogs  to  be  such 
as  to  put  a  reasonable  man  upon  his  guard,  and  the  defendant 
suffered,  after  notice,  his  dogs  to  go  at  large,  then  the  defend- 
ant should  be  liable  to  the  plaintiff  for  the  amount  of  injury 
done."  The  jury  found  for  the  defendant  below. 

These  instructions  were  clearly  wrong.  The  law  is  well  set- 
tled, that  where  a  person  negligently  keeps  dogs  or  other  ani- 
mals, which  are  known  to  him  to  be  of  a  savage  and  ferocious 
disposition,  the  owner  of  the  animals  is  accountable  for  all 
the  injury  they  may  do  to  others ;  and  it  is  the  duty  of  the 
owner  of 'such  animals  to  secure  them,  to  keep  them  from 
doing  mischief. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  remanded,  and  a  new  trial  awarded. 

Judgment  reversed. 

621 


493  VANDALIA. 


Wilson  et  al.  v.  Campbell  et  al. 


JOSEPH  L.  WILSON  and  THOMAS  S.  HINDE,  appellants, 
v.  JOHN  C.  CAMPBELL,  JOHN  BROWN  and  JOHN 
GARDNER,  appellees. 

Appea  I  from  Edwards. 

BOND — PRINCIPAL  AND  SURETY — MEMORANDUM  —  PLEADING. — Where 
at  the  bottom  of  a  bond  made  by  a  principal  and  his  surety,  a  memorandum 
was  annexed,  that  "  This  bond  is  executed  by  Mr.  H.  as  security  for  Mr.  W., 
the  principal":  Held,  that  the  fact  contained  in  said  memorandum  could 
not  be  pleaded  to  an  action  on  the  bond  against  the  surety.  Held,  also, 
that  it  was  unnecessary  to  notice  the  memorandum  in  the  declaration. 

Where  two  persons  execute  a  bond,  one  as  principal  and  the  other  as 

surety,  one  is  equally  as  much  bound  to  the  obligee  as  the  other. 
[*494]        *Semble,  That  the  signing  as  surety,  is  only  evidence  between  the 
obligors,  of  the  character  of  the  obligation  of  each. 

THIS  was  an  action  of  covenant  commenced  by  the  appellees 
against  the  appellants,  in  the  Edwards  Circuit  Court,  upon  the 
following  bond : 

"  On  or  before  the  twenty-first  day  of  March,  eighteen  hun- 
dred and  thirty-seven,  we  bind  ourselves  and  our  heirs,  jointly 
and  severally,  to  pay  to  John  C.  Campbell,  John  Brown,  and 
John  Gardner,  or  to  either  of  them,  the  sum  of  five  hundred 
and  twenty  dollars,  with  interest  from  the  date  hereof.  Wit- 
ness our  hands  and  seals,  this  twenty -first  day  of  March,  1836. 

JOSEPH  I.  WILSON,      [L.S.] 
TH.  S.  HINDE,  [L.S.] 

Memorandum  that  this  bond  is  executed  by 

Mr.  Hinde,  as  security  for  Mr.  Wilson, 

the  principal.  C.  E.  DODDRIDGE,  for  the  obligees." 

This  cause  was  tried  at  the  April  term,  1838,  of  the  Court 
below,  before  the  Hon.  Justin  Harlan.  Judgment  was  rendered 
against  the  appellants  for  $585. 

.    H.  EDDY,  for  the  appellants,  contended  that  the  demurrer 
should  have  been  sustained  to  the  declaration. 

E.  B.  WEBB,  for  the  appellants,  cited  the  following  authori- 
ties: 

2  Am.  Dig.  80  and  535,  Hunt  v.  Adams,  5  Mass.  358,  show- 
ing that  signing  as  surety  makes  no  distinction ;  2  Tuck.  Com. 
126 ;  1  Chit.  Plead.  353,  As  to  the  manner  a  deed  should  be 
pleaded ;  1  Chit.  Plead.  662-3 ;  2  Tuck.  Com.  267,  Demurrer 
only  reaches  error  in  substance;  5  Bac.  Abr.  322;  2  Tuck.  Com. 
270,  Pleading  over  aids  some  defects  of  substance  and  all  of 

522 


DECEMBEK  TEKM,  1838.  494 

Wilson  et  al.  v.  Campbell  et  al. 

form  ;  2  Con.  Eep.  550,  Ferguson  v.  Harwood,  What  variance 
material,  and  what  parts  of  a  contract  necessary  to  be  set  forth. 
Variance  immaterial  if  it  do  not  change  the  legal  effect  of  a 
contract ;  3  Stark.  Ev.  1590  in  note,  1550  note  1,  1558-9  note 
3 ;  13  Johns.  449  ;  19  Johns.  421. 

BKOWNE,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  covenant  brought  in  the  Circuit  Court 
by  John  C.  Campbell  and  others,  against  Joseph  L.Wilson  and 
Thomas  S.  Hinde,  on  a  bond  for  the  payment  of  money.  The 
bond  was  signed  and  sealed  by  the  said  Wilson  and  Hinde.  At 
the  foot  of  the  covenant  was  this  memorandum :  "  That  this 
bond  is  executed  by  Mr.  Hinde  as  security  for  Mr.  Wilson,  the 
principal."  The  declaration  contained  no  reference  whatever 
to  this  memorandum.  Defendant  below  craved  oyer,  and 
pleaded  the  fact  that  Hinde  signed  as  security  only, 
and  plaintiffs  below  *knew  it,  and  accepted  it  as  [*495] 
such.  Demurrer  to  the  plea  sustained,  and  thereupon 
damages  assessed,  and  judgment.  To  reverse  the  judgment  of 
the  Court  below,  an  appeal  is  brought  to  this  Court  by  Hinde. 
The  Court  did  right  in  sustaining  the  demurrer  to  the  plea. 
It  may  be  that  Hinde  was  only  security  to  Wilson,  etill  Hinde 
is  bound  with  Wilson,  to  Campbell  and  others.  Whether 
Hinde  is  security  or  principal,  he  is  equally  bound  with  Wil- 
6on  to  [discharge  the  obligation  to  John  C.  Campbell  and 
others. 

The  judgment  of  the  Court  below  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON.  Where  sureties  bind  themselves  jointly  and  severally 
as  principals  in  a  bond,  there  is  no  difference  as  to  their  liability  in  equity 
for  the  debt  between  them  and  the  principal  debtor,  for  whom  they  are  sure- 
ties. U.  S.  v.  Cushman,  2  Summer's  C.  C.  R.  426. 

Where  a  lease  was  made  to  two,  one  of  whom  was  sole  occupant  of  the 
premises,  which  he  held  over  the  term,  and  debt  for  the  rent  of  the  whole 
period  of  actual  occupancy  was  brought  against  both:  It  was  held  that  the 
other  lessee  was  not  estopped  to  show  that  he1  signed  the  lease  only  in  the 
character  of  surety,  for  the  term  specified,  without  having  in  fact  occupied 
the  premises  at  any  time,  and  that  he  was  not  liable  for  rent  after  the  time 
mentioned  in  the  writing,  the  holding  over  being,  as  to  him,  no  continuance 
of  the  lease.  Kennebec  Bank  v.  Turner  et  al.,  2  Greenleaf,  42. 

623 


195  VANDALIA. 


Mason  r.  Finch. 


HAIL  MASON,  plaintiff  in  error,  v.  JOEL  FINCH,  defend- 
ant in  error. 

Error  to  Madison. 

FORCIBLE  ENTRY  AND  DETAINER — STATUTE. — The  statute  of  the  State  of 
Illinois,  in  relation  to  forcible  entry  and  detainer,  is  more  comprehensive 
than  the  English  act.  It  authorizes  the  action  to  be  maintained  against 
a  lessee  who  holds  over,  after  the  determination  of  his  lease,  whether  he 
holds  by  force  or  not,  provided  the  lessor  has  given  him  notice  to  quit." 

SAME — PARTIES. — One  joint  tenant,  or  tenant  in  common,  may  maintain 
an  action  for  forcible  entry  and  detainer  against  his  co-tenant. 

THIS  cause  was  tried  at  the  August  term,  1838,  of  the  Madi- 
son Circuit  Court,  before  the  Hon.  Sidney  Breese. 

A.  COWLES  and  J.  M.  KEUM,  for  the  plaintiff  in  error,  relied 
upon  the  following  points  and  authorities : 

1.  That  the  facts  set  forth  in  the  affidavit  were  not  suffi- 
cient to  authorize  the  justices  of  the  peace  to  issue  their  writ 
and   entertain  cognizance  of   the  cause.     R.  L.  311.     (Gale's 
Stat.  313.) 

2.  One  tenant  in  common  can  not  maintain  an  action  of  forci- 
ble entry  and  detainer  against  his  co-tenant.    The  possession  of 

one  being  the  possession  of  both.     2  Blac.  Com.  48, 
[*496]     180,  183 ;  *Cruise's  Digest,  446 ;   Bigelow's  Digest, 
447,  453  ;  1  Chit.  Plead.  170  ;  4  Pick.  127. 

3.  The  defendant  in  error  should  have   brought  trespass. 
The  statute  gives  that  remedy  upon  a  state  of  facts  shown  by 
the  affidavit.     R.  L.  474,  §  3.     (Gale's  Stat.  514.) 

WILLIAM  MAKTIN,  for  the  defendant  in  error,  cited  3  Bac. 
Abr.  708,  710;  R.  L.  313.  (Gale's  Stat.  313.) 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
Finch  made  complaint  on  oath  before  two  justices  of  the 
peace,  that  he  and  Mason  were  joint  tenants  of  a  dwelling-house 
in  the  county  of  Madison,  and  that  Mason,  with  force  and 
arms,  forcibly  entered  into  the  whole  of  the  dwelling-house, 
and  turned  Finch  out  of  the  possession  of  his  moiety  of  the 
house,  and  keeps  him  out ;  and  prays  of  the  justices  that  he 
may  be  restored  to  the  possession  of  the  undivided  half  of  the 
house. 

•  Forcible  entry  and  detainer — When  action  lies.     See  Starr  &  C.  111.  Stat. 
Ch.  57  If  2,  and  numerous  authorities  there  cited. 
tat 


DECEMBER  TEEM,  1838.  496 

Mason  v.  Finch. 

On  the  trial  of  this  complaint,  before  the  justices,  a  verdict 
was  found  in  favor  of  the  defendant  below,  and  the  cause  was 
removed  into  the  Circuit  Court  by  appeal. 

In  the  Circuit  Court.  Mason  moved  the  Court,  that  the  ap- 
peal be  dismissed,  because  it  appeared  from  the  complaint  of 
the  plaintiff  below  that  the  parties  were  joint  tenants,  and  as 
the  possession  of  one  is  the  possession  of  both  in  law,  neither 
can  maintain  an  action  for  forcible  entry  and  detainer,  against 
the  other.  The  motion  to  dismiss  was  overruled  by  the  Court. 
On  the  trial  of  the  cause  in  the  Circuit  Court,  a  verdict  of 
guilty  was  found  against  the  defendant  below,  and  judgment 
rendered  that  the  plaintiff  be  put  in  possession  of  the  undi- 
vided moiety,  or  one  half  of  the  whole  dwelling-house  do- 
scribed  in  the  complaint.  To  reverse  this  judgment  a  writ 
of  error  has  been  brought  to  this  Court,  and  the  only  point 
made  in  the  case  is,  that  one  joint  tenant  can  not  maintain  an 
action  of  forcible  entry  and  detainer  against  his  co-tenant. 

The  act  concerning  forcible  entry  and  detainer  was  passed  to 
restrain  persons  from  violently  taking  and  keeping  possession 
of  lands  and  tenements,  although  they  may  have  title,  and  gives 
to  the  party  thus  ejected  a  summary  remedy  to  restore  him  to 
his  former  possession. 

In  England,  proceedings  under  their  acts  against  forci^e 
entries  and  detainers,  are  either  by  indictment^  or  by  complaint 
to  a  justice  of  the  peace,  and  in  either  case  it  is  a  criminal  pro- 
ceeding, and  the  defendant  is  liable  to  tine  and  imprisonment, 
and  the  injured  party  to  a  restoration  of  his  possession.  Our 
act  furnishes  a  civil  remedy,  and  the  judgment  of  the  justices 
only  restores  the  party  to  the  possession  of  the  premises  from 
which  he  has  been  forcibly  ejected.  The  scope  and 
design  of  our  act  is  the  same  *with  those  of  England,  [*497] 
and  consequently  where  a  party  maybe  indicted  there 
for  a  forcible  entry  or  detainer,  a  civil  action  may  be  main- 
tained here.  Our  act  is  more  comprehensive  than  the  Eng- 
lish, as  it  authorizes  the  action  to  be  maintained  against  a  les- 
see who  holds  over,  after  the  determination  ot  his  lease, 
whether  he  holds  by  force  or  not,  provided  the  lessor  has 
given  written  notice  to  quit. 

Can  then  a  joint  tenant  in  England,  who  has  actually  been 
ousted  by  his  co-tenant,  be  proceeded  against  under  their  stat- 
utes ? 

Russell,  a  late  English  writer  on  crimes  and  indictable  mie 
demeanors,  lays  down  the  law  in  relation  to  forcible  entry  and 
detainer,  as  follows :     "A  joint  tenant,  or  tenant   in  common, 
may  offend  against  them  (the  English  acts  on  that  subject) 
either  by  forcibly   ejecting,  or  forcibly  holding  out,  his  com- 


497  VANDALIA. 


Mason  v.  Finch. 


panion,  for  though  the  entry  of  such  a  tenant  be  lawful  per 
my  et  per  tout,  so  that  he  can  not  in  any  case  be  punished  in 
an  action  of  trespass  at  common  law,  yet  the  lawfulness  of  his 
entry  does  not  excuse  the  violence  done  to  his  companion,  and 
consequently  an  indictment  of  forcible  entry  into  a  moiety  of 
a  manor,  etc.,  is  good."  (Russell  on  Crimes,  286.)  Russell 
quotes  Hawkins'  Pleas  of  the  Crown,  a  work  of  high  author- 
ity, for  this  doctrine.  If  we  consult  the  reason  of  the  case, 
we  can  readily  perceive  good  grounds  why  a  joint  tenant 
should  be  entitled  to  the  benefit  of  this  act.  At  common  law, 
as  before  stated,  one  joint  tenant  can  not  maintain  trespass 
quare  clausum  fregit,  because  the  possession  of  one  joint  ten- 
ant is  the  possession  of  both.  A  party,  as  much  injured  as  if 
he  held  in  severalty,  is  denied  a  remedy  for  an  injury,  upon  a 
presumption  in  law  which  the  facts  of  the  case  contradict. 
This  is  clearly  a  defect  in  the  common  law,  which  it  may  well 
be  presumed  that  the  act  against  forcible  entry  and  detainer 
was  intended  to  remedy.  Although  at  common  law  one  joint 
tenant  can  not  maintain  trespass  against  his  co-tenant,  yet  he 
may  maintain  ejectment  if  he  can  prove  an  actual  ouster,  which 
rebuts  the  presumption  that  the  possession  of  one  is  the  pos- 
session of  the  other  ;  and  we  can  see  no  reason,  if  the  ejected 
co-tenant  may  maintain  ejectment,  why  he  may  not  avail  him- 
self of  the  summary  remedy  furnished  by  this  statute.  In 
Kentucky  the  Court  of  Appeals  (2  Dana,  111)  decided 
that  one  joint  tenant  may  maintain  a  warrant  against  his  co- 
tenant  for  a  forcible  detainer,  provided  that  the  party  prove 
that  he  is  kept  out  by  actual  force,  and  the  judgment  would 
be  for  "  an  undivided  interest "  according  to  the  proof. 

Whether  in  the  case  under  consideration  such   proof  was 
given,  is  not  made  a  point  in  the  case,  and   it  is  therefore  un- 
necessary to  inquire.    Both  reason  and  adjudged  cases 
[*498]     being  in  favor  of  *sustaining  this  form  of  proceeding, 
the  judgment  of  the  Circuit  Court  must  be  affirmed 
with  costs. 

Judgment  affirmed. 

526 


DECEMBER  TERM,  1838.  493 

Phillips  ».  Dana. 


THOMAS    PHILLIPS,   appellant,    v.    GILES  C.    DANA, 

appellee. 

Appeal  from  Peoria. 

PLEADING — AMENDMENT  —  DISCRETION. — Applications  to  amend  the 
pleadings  in  a  cause,  are  addressed  to  the  sound  discretion  of  the  Court,  and 
the  allowance  of  such  applications  can  not  be  assigned  for  error. 

PRACTICE.— Where  a  demurrer  was  interposed  to  the  replication  of  the 
plaintiff  to  one  of  the  defendant's  pleas,  issue  to  the  country  having-  been 
taken  on  the  other  pleas,  and  the  parties  agreed  that  both  matters  of  law 
and  fact  arising  in  the  cause  might  be  tried  by  the  Court,  and  after  hearing 
the  evidence,  the  Court  gave  judgment  for  the  plaintiff  for  damages  without 
expressly  overruling  the  demurrer :  He  Id,  that  as  the  replication  was  sufficient, 
there  was  no  error  in  the  proceedings. 

THIS  cause  was  tried  at  the  September  term,  1838,  of  the 
Peoria  Circuit  Court.  Judgment  was  rendered  for  the  plaint- 
iff in  the  Court  below,  from  which  the  defendant  appealed  to 
this  Court. 

N.  H.  PURPLE,  for  the  appellant,  contended  that, 

If  a  verdict  do  not  find  the  issue  joined,  it  will  be  reversed 

on  error.     Bigelow's  Dig.  298,  No.  8. 

Judgment  must  be  reversed  when  it  does  not  show  how  an 

issue  was  disposed  of.      Pirtle's  Dig.  360,  No.  24 ;    1  or  2 

Missouri  Rep.  260. 

H.  P.  JOHNSON,  for  the  appellee. 

LOOKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
The  first  error  relied  on  in  this  case  is,  that  the  Circuit 
Court  permitted  the  plaintiff  to  amend  his  declaration  after 
issue  joined  upon  the  plea  of  non-assumpsit,  bj  adding  to  the 
description  of  the  note  described  in  the  declaration  the  words 
"with  six  per  cent,  interest."  Applications  to  amend  the 
pleadings  are  addressed  to  the  sound  discretion  of  the  Court, 
and  the  granting  of  leave  to  amend  can  not  be  assigned  for 
error. 

The  other  error  assigned  is,  that  the  Court  gave  no  judg- 
ment upon  the  demurrer  to  the  replication  to  defendant's  sixth 
plea,  but  gave  a  general  judgment  for  damages  against  the  de- 
fendant without  deciding  the  issue  at  law.  It  appears  from 
the  record  that  there  were  several  pleas  upon  which  issue  to 
the  country  was  taken,  and  that  the  sixth  plea  mentioned  in 
this  assignment  was  a  plea  of  release  of  the  action  mentioned 
in  the  plaintiff's  declaration.  To  this  plea  the  plaintiff  below 

CITED:    Pleading.    3  Gilm.  496. 

627 


498  VANDALiA. 


Miller  v.  Howell. 


replied  that  the  release  mentioned  in  the  plea  was  not 
[*499]  his  deed,  and  tendered  an  *issue  to  the  country.  Af- 
ter filing  the  demurrer  the  record  states  that  the  par- 
ties then  agreed  that  both  matters  of  law  and  fact  arising  in 
this  cause  may  be  tried  by  the  Court,  and  after  hearing  the 
evidence  and  arguments  of  counsel  the  Court  gave  judgment 
for  the  plaintiff  below,  for  his  damages,  without  expressly 
overruling  the  demurrer.  Was  this  omission  error?  The  ie,> 
lication  was  clearly  a  sufficient  answer  to  the  defendant's  plea, 
and  the  demurrer  was  improperly  interposed.  The  Circuit 
Court,  doubtless,  so  considered  it,  and  treated  it  as  a  nullity. 
By  so  doing  the  defendant  has  sustained  no  possible  injury, 
and  the  only  effect  of  reversing  the  judgment  below  and  re- 
manding the  cause,  would  be  to  require  the  Circuit  Court  to 
decide  a  demurrer  which  this  Court  perceives  must  be  over- 
ruled. To  reverse  a  judgment  for  such  trifling  informalities, 
where  no  possible  injury  can  result  to  the  party,  would  be  a 
perversion  of  judicial  proceedings. 

The  judgment  below  is  affirmed  with  costs. 

Judgment  affirmed. 


ALEXANDER  B.  MILLER,  appellant,  v.  CHAKLES  HOW- 
ELL,  appellee. 

Appeal  from  Macoupin. 

PROMISSORY  NOTE— DEFENSE— FRAUD— INTENT.— In  an  action  for  a 
promissory  note  given  for  a  town  lot,  and  assigned  after  it  became  due,  the 
maker,  to  show  that  the  consideration  had  failed,  offered  to  prove  that  the 
payees  of  the  note,  as  proprietors  of  the  town  in  which  the  lot  was  situated, 
publicly  proclaimed,  on  the  day  of  the  sale  of  the  lot,  that  they  would  build 
a  storehouse  in  the  town,  two  stories  high,  forty  by  twenty-four  feet,  by  the 
1st  of  August  following  the  day  of  sale  ;  and  that  they  would  construct  a 
bridge  across  the  Big  Macoupin,  in  the  said  town;  but  that  they  had  failed 
so  to  do.  Held,  that,  it  would  be  no  defense  to  the  note,  and  that  such 
proof  would  not  be  evidence  of  fraud,  unless  it  was  also  shown  that  the  pro- 
prietors of  said  town  made  such  declarations  deceitfully.* 

Fraud  can  not  exist  without  an  intention  to  deceive.b 

THIS  action  was  originally  instituted  before  a  justice  of  the 
peace  of  Macoupin  county,  and  was  brought  by  appeal  into 
the  Circuit  Court,  where  the  cause  was  tried  at  the  April 

CITED  :    Fraud,  representations  must  be  known  to  be  false.    81  111.  534. 
Deceit  as  a  defense.  8  Scam.  175.    What  is  not  a  defense  to  note.   3  Id.  505. 
•  Promissory  notes — Validity  of.    See  Mulford  v.  Shepard,  post,  583  note. 
b  Fraud—  What  constitutes.    See  Hen^haw  v.  Bryant,  4  Scam.  97,  note. 

528 


DECEMBER  TEKM,  1838. 


Miller  v.  Ho  well. 


term,  1838,  before  the  Hon.  Jesse  B.  Thomas.  Judgment  was 
rendered  for  the  plaintiff  for  $73  and  costs  of  suit,  from  which 
the  defendant  appealed  to  this  Court. 

II.  F.  LINDER  and  JOHN  S.  GREAT-HOUSE,  for  the  appellant. 
STEPHEN  A.  DOUGLAS,  for  the  appellee. 

*LOCKWOOD,  Justice,  delivered  the  opinion  of  the     P5001 
Court  : 

This  was  an  action  of  assumpsit  commenced  on  a  promissory 
note  assigned  to  Howell,  the  plaintiff  below,  after  it  became 
due.  After  the  note  was  read  in  evidence,  Miller,  the  defend- 
ant below,  proved  that  the  note  was  given  as  the  consideration 
of  the  sale  of  a  town  lot,  which  was  bid  off  by  him  at  a  public 
sale  of  lots  held  by  the  assignors  of  the  note;  and  that  the  de- 
fendant received  from  them  a  bond  to  convey  the  lot  upon  the 
payment  of  the  note.  The  defendant,  to  show  that  the  consid- 
eration of  the  note  had  failed,  offered  to  prove  that  the  payees 
of  the  note,  as  proprietors  of  the  town  in  which  the  lot  was 
situated,  publicly  proclaimed,  on  the  day  of  the  sale  of  the  lot, 
that  they  would  build  a  storehouse  in  the  town,  two  stories 
high,  forty  by  twenty-four  feet,  by  the  1st  of  August  follow- 
ing the  day  of  sale  ;  and  that  they  would  construct  a  bridge 
across  the  Big  Macoupin  in  the  said  town.  Defendant  f  urtlier 
offered  to  prove  that  the  payees  of  the  note  had  failed  to 
build  the  house  and  bridge.  To  the  reception  of  tin's  testi- 
mony, the  plaintiff  objected,  and  it  was  rejected  by  the  Court. 
The  rejection  of  this  testimony  is  assigned  for  error.  This 
testimony  was  properly  rejected.  It  did  not  tend  to  show  a 
failure  of  consideration.  The  consideration  of  the  note  was 
the  sale  of  tliu  lot  for  the  conveyance  of  which  Miller  holds  a 
bond.  If  the  payees  of  the  note  should  fail  to  convey  the  lot 
at  the  time  stipulated  in  the  bond,  or  if  they  had  no  title  to 
the  lot  when  it  became  their  duty  to  convey  —  either  of  these 
facts  would  constitute  a  failure  of  consideration  of  the  note. 
The  declaration  of  the  payees  of  the  note  of  their  intention  to 
build  a  house  and  a  bridge  in  the  town,  can  in  nowise  be  said 
to  form  the  consideration  of  the  note.  Nor  did  the  evidence 
offered,  amount  to  a  fraud,  becjause  the  defendant  did  not  also 
offer  to  prove,  that  when  the  proprietors  made  the  declarations 
of  their  intention  to  build  in  the  town,  they  did  it  deceitfully. 
It  does  not  appear  from  anything  the  defendant  offered  to 
prove,  but  that  the  proprietors  made  the  declarations  in  good 
faith.  Fraud  can  not  exist  without  an  intention  to  -deceive. 

VOL.  1—34  629 


500  VAN  DA  LI  A. 


Miller  r.  Houcke  et  al. 


As  the  evidence  offered  did  not  tend  to  prove  either  failure  of 
consideration  or  fraud,  it  was  properly  overruled. 
The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON.     See  McConnell   r.  Wilcox.  ante  344.     Every  false 
affirmation  does  not  amount  to  a  fraud.     Breese,  234. 


[*501]  *  ALEXANDER  B.  MILLER,  plaintiff  in  error,  v. 
Ross  HOUCKE,  JACOB  C.  GAUTERMAN  and 
JEFFERSON  WEATHERFORD,  defendants  in 
error. 

Error  to  Macoupin. 

TRIAL — EXAMINATION  OP  WITNESS. — It  does  not  follow  as  a  necessary 
consequence  to  the  asking  of  a  question  of  a  witness  on  the  trial  of  a  cause, 
that  the  answer  will  be  in  the  affirmative  ;  and  unless  the  answer  consti- 
tutes illegal  testimony  for  the  party  calling  the  yitness  'it  is  no  ground  of  ex- 
ception. 

PRACTICE — EXCEPTIONS — BILL  OF. — Where  an  exception  is  taken  to  a 
question  asked  a  witness  on  the  trial  of  a  cause,  if  the  answer  of  the  witness 
is  not  given  in  the  bill  of  exceptions,  the  Supreme  Court  can  not  know  that 
the  Circuit  Court  received  improper  testimony. 

The  province  of  a  bill  of  exceptions  taken  in  the  progress  of  a  trial  is  to 
show  that  improper  testimony  has  been  received,  or  proper  testimony  re- 
jected. 

THIS  cause  was  tried  at  the  April  term,  1838,  of  the  Ma- 
coupin Circuit  Court,  before  the  Hon.  Jesse  B.  Thomas. 
Judgment  was  rendered  for  the  defendants  in  error  for  $71 
and  costs. 

TJ.  F.  LINDEK  and  JOHN  S.  GREATHOUSE,  for  the  plaintiff  in 
error. 

STEPHEN  A.  DOUGLAS,  for  the  defendants  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
It  appears  from  the  bill  of  exceptions  taken  on  the  trial  of 
this  cause  that  the  plaintiffs  asked  the  witness  a  question  which 
the  defendant  objected  to,  buifthe  Court  overruled  the  objec- 
tion and  permitted  the  question  to  be  answered.  Whether 
the  question,  however,  was  answered  in  the  affirmative  or 

CITED:  Answer  must  be  set  out  in  bill  of  exceptions.  4 Scam.  12.  Wit- 
ness, what  can  not  be  assigned  for  error.  4  Id.  195 ;  objections  to  competency 
based  upon  testimony.  32  111.  294.  Supreme  Court  can  not  pass  on  testi- 
mony. 3  Scam.  428.  Bill  of  exceptions.  Defective  when.  17  111.  235. 

530 


DECEMBER  TERM,  1838.  501 

Williams  v.  Clay  tor  et  al. 

negative,  is  not  stated.     The  error  relied  on  to  reverse  the 
judgment  below  is  the  permission  to  answer  the  question. 

It  does  not  follow,  as  a  necessary  consequence  to  the  asking 
of  a  question,  that  the  answer  will  be  in  the  affirmative  ;  and 
unless  the  answer  constitutes  illegal  testimony  for  the  party 
call  ing  a  witness  it  is  no  ground  of  exception."  The  province 
of  a  bill  of  exceptions,  taken  in  the  progress  of  a  trial,  is  to 
show  that  improper  testimony  has  been  received,  or  proper 
testimony  rejected.  The  answer  of  the  witness  not  being 
given,  this  Court  can  not  know  that  the  Circuit  Court  received 
improper  evidence. 

The  judgment  must  therefore  be  affirmed  with  costs. 

Judgment  affirmed. 

See  Swafford  v.  Dovenor,  ante  165  ;  Gilmore  v.  Ballard,  ante  252;  Kitchell 
v.  Bratton,  ante  300;  Ballingall  v.  Spraggins,  ante  330. 


*KOBERT   K.    WILLIAMS,  appellant,  v.  JOHN     [*502] 
DOE,  ex  demf  GEORGE  CLAYTOR,  MASON  C. 
FITCH,   HARVEY  SCRIBNER,  and  HENRY  EENCKIN, 

appellee. 

Appeal  from  Adams. 

COUNTY  COMMISSIONERS — AUTHORITY  TO  CONVEY  REAL  ESTATE — ACT 
OP  1835. — Before  the  passage  of  the  act  of  1835,  County  Commissioners  had 
no  authority  to  convey  the  real  estate  of  their  county. 

The  act  of  1835  makes  valid  conveyances  made  before  that  time  by  County 
Commissioners  ;  and  a  deed  of  the  real  estate  of  the  county  executed  by  the 
County  Commissioners,  in  their  individual  names  and  "  under  their  private 
seals,"  "as  County  Commissioners  in  behalf  of  the  county,"  is  made  valid 
and  effectual  to  pass  the  estate  therein  conveyed. 

EJECTMENT — EVIDENCE. — In  an  action  of  ejectment  the  plaintiff,  to  sup- 
port his  title,  read  in  evidence  a  deed  from  one  Wheelock  and  wife  to  one 
Claytpr,  from  whom  the  lessors  of  the  plaintiff  derived  title  to  the  premises 
described  in  his  declaration,  and  the  defendant  read  in  evidence  a  decree  of 
the  Adams  Circuit  Court,  sitting  as  a  court  of  chancery,  made  in  a  case 
wherein  Archibald  Williams,  administrator,  etc.,  was  complainant,  which 
rescinded  and  set  aside  the  deed  to  said  Claytor,  and  the  deed  to  the  lessors 
of  the  plaintiff,  and  directed  that  a  special  execution  issued  to  the  sheriff  of 
Adams  county,  against  said  Wheelock,  as  the  trustee  of  one  Hynes,  to  sell 
the  premises  described  in  the  plaintiff's  declaration  for  the  satisfaction  of 
the  judgment  and  costs  in  favor  of  said  Williams,  administrator,  mentioned 
in  the  bill  in  chancery,  upon  which  the  decree  was  rendered,  ami  offered  to 
read  in  evidence  the  special  writ  of  execution  with  the  return  thereon,  which 
return  stated  that  said  premises  were  sold  to  the  defendant,  and  also  the 
sheriff's  certificate  of  the  sale  of  said  premises  and  his  deed  to  the  defend- 
ant, under  an.  execution  in  favor  of  one  Wesley  Williams,  which  were  ex- 

CITED:    Practice — Evidence  for  jury.    50111.303. 

631 


592  YANDALIA. 


Williams  r.  Claytor  et  al. 


eluded  from  the  jury;  and  the  plaintiff  then  offered  to  prove  that  Clay  tor 
had  redeemed  said  premises  from  said  sheriff's  sale,  which  was  not  allowed, 
and  the  Court  excluded  said  decree  from  the  jury.  The  defendant  then  of- 
fered in  evidence  the  bill,  process,  etc.,  in  the  chancery  suit  in  which  the 
decree  was  rendered  in  favor  of  Archibald  Williams,  administrator,  etc., 
which  were  rejected  by  the  Court  ;  to  all  of  which  decisions  against  him  the 
defendant  excepted.  Held,  that  the  decree  was  properly  excluded  from 
the  jury  inasmuch  as  the  defendant  had  failed  to  produce  a  deed  from  the 
sheriff  under  the  special  writ  of  execution.  Held,  also,  that  the  bill  was 
properly  excluded.  Held,  also,  that  the  deed  from  the  sheriff  was  not  ad- 
missible in  evidence,  as  it  recited  an  entirely  different  writ  of  execution 
from  that  described  in  the  decree.  Held,  also,  that  there  was  no  error  in 
the  proceedings. 

SAME — PRACTICE. — The  practice  of  excluding  evidence  after  it  has  been 
received,  where  some  one  important  link  in  the  chain,  necessary  to  establish 
the  right  claimed,  is  wanting,  seems  to  have  been  adopted  in  many  of  the 
courts  of  the  Western  States,  as  an  equivalent  for  instructing  the  jury  that 
for  want  of  such  proof  the  party  has  not  made  out  the  point  sought  to  be 
established. 

That  fraud  can  not  be  given  in  evidence  to  impeach  a  deed  in  an  action  of 
ejectment. 

That  where  in  an  action  of  ejectment  the  verdict  of  the  jury  was  rendered 
in  favor  of  the  lessors  of  the  plaintiff,  no  objection  can  be  raised  on  that  ac- 
count in  the  Supreme  Court. 

THIS  cause  was  tried  at  the  September  term,  1836,  of  the 
Adams  Circuit  Court,  before  the  Hon.  Richard  Ml  Young  and 
a  jury.  A  verdict  was  rendered  in  favor  of  the  lessors  of  the 
plaintiff,  from  which  the  defendant  appealed  to  this  Court. 
The  material  facts  in  the  case  appear  in  the  opinion  of  the 
Court.  The  offer  of  the  defendant  to  prove  that  the 
[*503]  deeds  to  the  lessors  *of  the  plaintiff  were  void  for 
actual  and  intentional  fraud,  which  was  rejected,  is 
not  stated  in  the  opinion  of  the  Court,  though  it  was  -necessa- 
rily decided  in  the  case. 

The  following  errors  are  assigned  in  this  Court : 

1.  The  Court  erred  in  allowing  the  said  deeds  of  the  said 
plaintiff's  lessors  to  be  read  as  evidence  to  the  jury. 

2.  The  Court  erred  in  excluding  the  said  decree  from  the 

jury- 

3.  The  Court  erred  in  not  allowing  the  said  bill,  and  papers, 
and  process,  in  the  said  chancery  suit,  to  be  read  as  evidence 
to  the  jury. 

4.  The  Court  erred  in  not  admitting  the  said  defendant  in 
the  Court  below,  to  read  as  evidence,  his  said  deed  and  certifi- 
cate of  purchase ;  and  in  refusing  to  allow  his  proof  that  the 
deeds  of  the  said  plaintiff's  lessors  were  void  for  actual  and 
intentional  fraud. 

5.  There  is  a  variance  in  the  declaration  in  this,  that  in  its 
commencement  it  is  against  Richard  Roe,  and  in  its  conclu- 
sion, it  is  against  Robert  R.  Williams. 

6S2 


DECEMBEE  TEEM,  1838.  503 

Williams  c.  Claytor  et  al. 

6.  The  verdict  is  defective  in  this,  that  it  is  in  favor  of 
Fitch,  Scribner  and  Eenckin. 

A.  WILLIAMS,  S.  T.  LOGAN  and  E.  D.  BAKER,  for  the  appel- 

1  '  i  t 

lant. 

O.  H.  BROWNING  and  J.  H.  RALSTON,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  ejectment  to  recover  the  South  half 
of  Lot  ]STo.  3,  in  Block  No.  5,  in  the  town  of  Quincy.  The 
declaration  contained  two  demises — one  from  George  Claytor, 
and  one  from  Mason  C.  Fitch,  Harvey  Scribner  and  Henry 
Eenckin. 

The  plaintiff  in  the  Circuit  Court,  during  the  progress  of 
the  trial,  offered  to  give  in  evidence  a  patent  from  the  United 
States,  for  the  land  on  which  the  half  lot  in  question  is  laid 
out,  to  the  county  of  Adams ;  next,  a  deed  from  the  County 
Commissioners  of  Adams  county,  for  the  same  lot,  to  E.  L.  E. 
Wheelock,  assignee  of  Jeremiah  Eose,  duly  acknowledged  and 
recorded  ;  next,  a  deed  from  Wheelock  and  his  wife,  duly  ex- 
ecuted and  recorded,  to  George  Claytor ;  and  from  Claytor 
and  his  wife,  to  Fitch,  Scribner,  and  Eenckin,  the  lessors  of 
the  plaintiff,  which  was  objected  to  by  the  defendant,  but  the 
deeds  and  patent  were  admitted  as  evidence.  The  possession 
of  the  premises  by  Williams,  at  the  commencement  of  the 
suit,  was  also  proven. 

The  defendant,  on  the  trial,  offered  in  evidence  a  decree 
obtained  in  a  suit  in  chancery  in  the  Circuit  Court  of  Adams 
county,  in  November,  1834,  in  which  Archibald  Williams,  ad- 
ministrator of  one  Broady,  deceased,  was  complainant, 
and  Peter  Hynes,  *E.  L.  E.  Wheelock,  George  Claytor,  [*504] 
E.  G.  Ormsby,  Mason  C.  Fitch,  Harvey  Scribner,  and 
Henry  Eenckin  were  defendants,  by  which,  among  other 
things,  the  conveyances  from  Wheelock  to  Claytor,  and  from 
Claytor  to  Fitch,  Scribner  and  Eenckin,  for  the  half  lot 
described  in  the  plaintiffs  declaration,  were  declared  fraudu- 
lent and  void,  and  were' set  aside,  and  rescinded,  and  canceled, 
and  the  premises  decreed  to  be  sold  under  a  special  execution 
against  Wheelock,  as  the  trustee  of  one  Peter  Hynes,  to  sat- 
isfy the  judgment  in  the  complainant's  bill  of  complaint  set 
forth.  The  defendant  then  offered  to  produce  in  evidence, 
the  special  execution  for  the  sale  of  the  Lot  3,  in  Block  5, 
named  in  the  decree  in  the  cause  in  chancery,  with  the  in- 
dorsements and  certificate  of  the  sheriff  of  the  county  of 
Adams,  that  the  Jot  in  question  had  been  duly  sold  to  the  de- 

083 


504  YANDALIA. 


Williams  v.  Clay  tor  et  al. 


fendant,  Williams,  and  that  he  would  be  entitled  to  a  deed 
after  the  period  for  redemption  had  expired ;  and,  also,  a  deed 
for  the  premises,  executed  by  the  said  sheriff,  by  virtue  of  a 
writ  of  fieri  facias,  issued  on  the  6th  day  of  October,  183*2, 
on  a  judgment  obtained  by  one  Wesley  Williams,  against  one 
Peter  Hynes,  for  the  sum  of  sixty-two  dollars  and  sixty-two 
cents,  to  Robert  R.  Williams,  the  defendant,  duly  acknowl- 
edged and  certified,  reciting  that  the  period  of  redemption 
had  expired.  This  evidence  the  Circuit  Court  excluded. 

The  plaintiff  then  moved  to  exclude  the  decree  from  the 
jury,  which  had  been  previously  offered  and  read  in  evidence, 
which  was  done.  The  defendant  here  closed  his  evidence, 
but  subsequently  applied  to  the  Court  to  admit  in  evidence  a 
bill  in  chancery,  Hied  in  the  Circuit  Court  in  Adams  county, 
on  the  22d  November,  1833,  by  Archibald  Williams  against 
said  Wheelock  and  others,  being  the  bill  on  which  the  decree, 
whi3h  had  been  excluded  from  the  jury,  was  founded.  The 
Circuit  Court  rejected  the  bill,  and  the  cause  being  submitted 
to  the  jury,  a  verdict  was  rendered  against  the  defendant, 
with  nominal  damages.  To  reverse  the  judgment  on  this  ver- 
dict, a  writ  of  error  has  been  prosecuted,  anoTit  is  now  assigned 
for  error: 

1.  That  the  Court  erred  in  allowing  the  deeds  offered  by 
the  lessors  of  the  plaintiff  to  be  read  in  evidence. 

2.  In  excluding  the  decree  from  the  jury,  and  not  perm  it- 
ting,  the  deed  made  to  the  defendant  by  the  sheriff,  under  the 
execution  against  Hynes,  in  favor  of  Williams,  to  be  read  in 
evidence. 

3.  In  not  admitting  the  bill  in  chancery  to  be  read  in  evi- 
dence. 

In  considering  the  grounds  relied  on  as  errors  in  this  cause, 
the  only  question  which  we  conceive  can  arise  out  of  the  facts 
adduced  in  evidence  on  the  part  of  the  lessors  of  the  plaintiff 
is,  as  to  the  mode  of  execution,  and  character  of  the  deed 
from  the  County  Commissioners  of  Adams  County  to 

Wheelock. 

[*5(K>]  *There  can  be  no  doubt,  that  at  the  time  of  the  exe- 
cution of  the  deed  to  Wheelock,  the  Commissioners 
could  not  legally  convey  the  real  estate  of  which  the  county  of 
Adams  was  possessed  ;  and  had  not  the  "Act  concerning  convey- 
ances by  County  Commissioners"  (Acts  of  1835,  46 ;  Gale's 
Stat.  156)  approved  7th  of  January,  1835,  been  passed,  the  deed 
would  have  been  void  and  inoperative. 

This  act  has  declared  that  such  conveyances,  made  in  good 
faith,  before  the  passage  of  the  act,  shall  be  valid  and  as  opera- 
tive as  if  the  Commissioners  had  been  duly  authorized  to  exe- 

531 


505 


Williams  v.  Claytor  et  al. 


cute  them,  at  the  time  of  the  execution  of  the  same.  It  has 
further  provided  for  the  execution  of  deeds  for  the  convey- 
ance of  real  estate  owned  by  counties,  for  the  future.  The  char- 
acter of  the  deed  is,  \  erhaps,  more  equivocal,  and  admits  of 
some  doubt  as  to  its  force  and  effect,  because  the  Commis- 
sioners are  named  as  the  grantors  in  the  deed,  personally,  though 
described  as  Commissioners.  The  patent  from  the  United 
States  conveys  the  land  to  the  county  of  Adams,  by  such  name, 
and  it  is  necessarily  thereby  vested  in  such  name.  It  would 
certainly  have  been  more  regular  and  appropriate,  to  have 
made  the  county  of  Adams  the  grantor  in  the  deed  to  Whee- 
lock,  and  not  the  County  Commissioners  by  their  names,  al- 
though they  are  described  as  such  Commissioners  in  the  deed. 

The  act  declaring  that  the  conveyances  heretofore  executed 
by  the  Commissioners  shall  be  valid,  might  be  supposed  to  be 
confined  to  the  signing  of  the  deeds  of  conveyance.  Yet, 
when  the  object  and  spirit  of  the  law  is  considered,  it  will  be 
recollected,  that  it  was  the  intention  of  its  framers  to  confirm 
and  render  valid  all  such  defective  conveyances,  whether  for 
want  of  power  to  execute  them,  or  on  account  of  the  character 
of  the  deeds,  and  the  modes  of  execution. 

In  the  case  before  us,  the  deed  also  recites  that  the  convey- 
ance is  made  for  and  on  behalf  of  the  county ;  and  we  are  there- 
fore, when  the  causes  which  doubtless  produced  the  act  are 
considered,  led  to  the  conclusion  that  the  deed  is  sufficient  to 
convey  the  title  to  the  estate  granted.  The  Circuit  Court,  we 
conceive,  decided,  in  effect,  if  not  in  mode,  correctly,  in  ex- 
cluding the  decree  from  the  jury,  after  the  defendant  had  failed 
to  produce  a  deed  in  conformity  to  the  sale  made  under  the 
special  writ  of  fieri  facias.  It  will  be  perceived  that  the  deed 
/ecites  a  sale  on  an  execution  made  in  an  entirely  different 
cause,  between  different  parties,  in  an  action  at  law,  and  there- 
fore there  could  be  no  relevancy  between  a  title  acquired  under 
the  fieri  facias  set  out  in  the  deed,  and  the  one  offered  in  evi- 
dence under  the  decree.  The  point  can  admit  of  no  doubt. 
The  objection  that  as  the  decree  was  evidence  conducive  to 
prove  the  is^ue,  it  should  have  been  left  to  the  jury  to 
act  on,  is  inconclusive.  The  practice  of  *excluding  evi-  [*506] 
dence  after  it  has  been  received,  where  some  one  im- 
portantlink  in  the  chain,  necessary  to  establish  the  right  claimed, 
is  wanting,  seems  to  have  been  adopted  in  many  of  the  courts 
of  the  Western  States  as  an  equivalent  for  instructing  the  jury, 
that  for  want  of  such  proof  the  party  has  not  made  out  the 
point  sought  to  be  established,  and  that,  therefore,  they  must 
disregard  the  other  portions  of  evidence  with  reference  to  that 
point,  and  consider  it  not  proven,  which  latter  mode  is  jircfer- 


r>35 


506  »  VANDALIA. 


Williams  v.  Clavtor  et  al. 


able,  being  more  consistent  with  the  regular  mode  of  proceed- 
ing. But  the  fact  that  this  course  was  not  taken,  as  the  result' 
had  it  been,  would  have  been  the  same,  can  not  be  a  sufficient 
reason  for  disturbing  the  judgment.  The  defendant  has  suf- 
fered no  injury  from  the  course  adopted. 

The  exclusion  of  the  bill  in  chancery  was  correct.  It  related 
directly  to  the  excluded  decree,  and  was  the  bill  on  which  that 
decree  was  founded. 

The  minor  causes  referred  to,  of  defects  in  the  declaration  and 
verdict,  have  not  been  considered  objectionable.  They  are  en- 
tirely cured  by  the  statute  of  jeofails. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 

The  following  motion  for  a  re-hearing,  was  filed : 

" Robert  R.  TJ  illiams  v. )  -\r  .•      <•  •> 

Claytor  and  others.     \  Mot?On  for  a  »*•«**• 

And  the  said  Robert  R.  "Williams  sets  down  the  following 
causes  for  a  re-hearing,  to  wit : 

1st.  The  deed  offered  in  evidence  was  made  by  the  sheriff  of 
Adams  county,  in  pursuance  of  a  sale  made  by  him  under  a 
writ  of  fi.  fa.,  in  favor  of  Wesley  Williams,  against  Peter 
Hynes,  who,  as  appeared  by  the  bill  in  chancery  excluded  from 
the  jury  as  evidence,  was  the  owner  of  the  estate  in  the  said 
declaration  mentioned,  and  held  a  bond  for  a  deed  to  the  same, 
at  the  time  of  the  said  sheriff's  sale  ;  and  Wheelock  held  the 
same  by  deed  from  the  County  Commissioners  of  said  county, 
made  in  pursuance  of  an  assignment  of  said  bond  by  the  said 
Hynes  to  said  Wheelock,  which  assignment  was  made  after  the 
said  sale,  all  which  appears  by  the  said  bill. 

2d.  The  decree   offered  in  evidence,  and  excluded  by  the 

Court,  annulled  and  set  aside  the  deeds  under  which  the  lessors 

of  the  plaintiff  below  claimed,  and  was  relied  on,  not  so  much 

to  show  title  in  the  defendant,  as  to  destroy  and  defeat  the  title 

set  up  by  the  plaintiff,  the  rule  being,  that  whatever  rebuts  the 

evidence   or  title  of  the  plaintiff,  is   admissible  in  evidence. 

This  view  of  the  case  seems  to  have  been  overlooked 

[*507]     by  the  Court,  as  *no  opinion  is   expressed  as  to  the 

effect  of  the  decree  upon  the  lessors'  titles. 

3d.  The  Court  takes  no  notice  of  a  certificate  of  purchase 
made  by  the  sheriff,  in  pursuance  of  a  sale  by  him  under  a 
special  fieri  facias,  issued  in  pursuance  of  said  decree,  which 
was  offered  in  evidence,  and  rejected  by  the  Court. 

WILLIAMS,  Atty.  for  Plff." 

This  motion  was  denied  at  a  subsequent  term  of  the  Court. 

536 


DECEMBER  TERM,  1838.  507 

Pearsons  et  al.  v.  Bailey. 


HIRAM  PEARSONS  and  RICHARD  J.  HAMILTON,  appel- 
lants, v.  AMOS  BAILEY,  appellee. 

Appeal  from  the  Municipal  Court  of  the  City  of  Chicago. 

COUNTY  SURVEYOR — FEES. — A  county  surveyor  is  entitled  to  receive 
twenty-five  cents  and  no  mere,  for  each  lot  contained  in  any  town  plat 
which  he  lays  out,  surveys,  and  plats. 

If  to  lay  out,  survey  and  plat  a  town  it  is  necessary  to  employ  chain- 
men,  it  is  then  as  much  the  duty  of  the  surveyor  to  employ  and  pay  them, 
as  it  is  to  furnish  a  chain  or  compass,  or  to  draw  the  map. 

SAME— ACT  OP  1829.— The  provision  of  §  5  of  the  act  of  Jan.  14,  1829, 
that  "All  chainmen  necessary  shall  be  employed  by  the  person  wanting  sur- 
veying lone,"  does  not  apply  to  surveyors  of  town  plats. 

PRACTICE. — Where  the  bill  of  exceptions  enables  the  Court  to  ascertain 
the  sum  that  would  have  been  recovered,  if  instructions  asked  for  had  been 
given,  it  is  unnecessary  to  send  the  case  back  for  a  new  trial ;  judgment 
will  be  rendered  for  that  amount  in  the  Supreme  Court. 

THIS  was  an  action  of  assumpsit  instituted  in  the  Municipal 
Court  of  the  City  of  Chicago,  by  the  appellee  against  the  ap- 
pellants, upon  the  following  accounts: 
"  Hiram  Pearsons  and  Richard  J.  Hamilton 

To  Amos  Bailey,  Dr. 

1836.  July  27th,  To  cash  paid  for  16£  days'  service 
as  chainmen  in  laying  out  Hamilton  and  Pear- 
sons' Addition  to  the  Town  of  Canal  Port,  at 

$2  $33  00 

1837.  May  6th,   To  cash  paid  for  39£  days'  service 
as  chainmen,  in  subdividing  the  original   lots 

in  the  Town  of  Canal  Port,  at  §2  79  00 

$112  00 

AMOS  BAILEY,  Surveyor  for  the  County  of  Cook." 

"  Hiram  Pearsons  and  Richard  J.  Hamilton 

To  Amos  Bailey,  Dr. 

1836.  July  27th,  To  laying  out  and  platting  Hamil- 
ton and  Pearsons'  Addition  to  the  Town 
of  Canal  Port,  into  581  lots  at  25  cents  per 
lot,  1*5  25 

*1837.  May  6th,  Subdividing   and  platting     [*50S] 
seventy -five  out  lots  in  the  original 
Town  of  Canal  Port  into  1099  lots,  at  25  cents 
per  lot, 

Amount  total,  $532  00 
AMOS  BAILEY,  Surveyor  for  the  County  of  Cook." 

The  declaration  contained,  besides  a  count  for  services  as 

687 


508  VAX  DA  LI  A. 


Pearsons  et  al.  v.  Bailey. 


surveyor,  counts  for  the  services  of  the  chainmeu,  and  for 
money  paid  them,  and  money  paid,  kid  out,  and  expended  for 
the  defendants.  Plea,  non-assumpsit. 

The  bill  of  excej.t'ons  shows  that  evidence  was  produced 
by  the  plaintiff,  to  show  that  he  paid  the  money  to  the  chain- 
men,  and  that  he  and  his  deputies  surveyed  the  town  of  Canal 
Port,  and  the  addition  thereto,  and  that  he  was  the  county 
surveyor  of  Cook  county  where  the  lands  lie.  It  was  also 
proved  that  the  account  was  presented  to  Pearsons,  who  re- 
fused to  pay  it;  that  the  account  was  presented  to  Hamilton, 
who  said  he  would  pay  his  part  of  it,  if  the  plaintiff  would  ex- 
ecute a  release  to  him,  which  the  plaintiff  refused  to  do. 

There  was  evidence  to  prove  that  Pearsons  was  interested 
in  the  town  and  addition  ;  that  other  persons  were  interested 
in  the  land ;  and  the  only  evidence  of  Hamilton's  interest 
was  the  above  acknowledgment  of  the  account. 

It  was  in  evidence  before  the  jury,  that  the  pay  of  the 
chaiiimen  was  fur  services  in  surveying  the  town  of  Canal 
Port  and  addition,  for  which  the  charge  of  twenty-five  cents 
per  lot  was  made  in  the  account. ;  that  the  charges  in  the  bill 
were  usual  and  customary,  and  such  as  are  charged  in  the 
country.  There  was  evidence  conducing  to  prove  that  Pear- 
sons made  the  contract  for  the  surveying,  and  that  Hamilton 
recognized  it  by  promising  to  pay  his  part  on  receiving  a 
release. 

The  defendants'  counsel  moved  the  Court  to  instruct  the 
jury: 

First,  "  That  under  a  count  in  the  declaration  by  the  plaint- 
iff, as  surveyor  of  the  county,  he  could  recover  no  other  fees 
than  such  as  are  allowed  to  such  an  officer  by  the  statute." 

Secondly,  "  That  the  plaintiff  could  not  recover  for  money 
paid  to  chainmen  for  surveying  and  subdividing  lots  for  which 
he  had  charged  twenty-five  cents  each ;  but  that  his  right  of 
recovery  for  such  services  must  be  limited  to  the  fees  allowed 
by  the  statute." 

Thirdly,  "  That  if  there  were  other  owners  of  the  land,  the 
plaintiffs  could  not  recover  from  the  defendants  without 
making  the  other  owners  parties."  The  Court  refused  to  give 
these  instructions,  and  the  defendants  excepted. 

The  cause  was  tried  before  the  Hon.  Thomas  Ford 
[*509]     and  a  jury,  *and  a  verdict  rendered  for  the  plaintiff  in 
the  Court  below,  for  $532,  from  which  the  defend- 
ants appealed  to  this  Court. 

The  cause  was  tried  at  the  July  term,  1837. 

JAMES  GRANT,  for  the  appellants,  contended  that  the  com- 

138 


DECEMBER  TEEM,  1838.  509 

Pearsons  et  al.  v.  Bailey. 

pensation  of  county  surveyors,  for  surveying  and  platting  town 
lots,  is  limited  to  twenty-five  cents  per  lot  for  all  services ; 
and  that  the  Court  should  have  given  the  instructions  asked. 
He  cited  K.  L.  296,  601 ;  2  Stark.  Ev.  101. 

J.  YOUNG  SCAMMON,  for  the  appellee  : 

There  was  no  claim  of  mure  than  the  legal  fees  prescribed 
by  statute,  in  the  count  as  surveyor  of  Cook  county,  and  con- 
sequently there  was  no  occasion  to  instruct  the  jury  that  the 
plaintiff  could  not  recover  what  he  did  not  claim. 

There  were  other  counts  in  the  declaration,  under  which 
the  services  of  the  chainmen,  or  the  money  paid  the  chain- 
men  could  be  recovered. 

The  refusal  of  the  Court  to  give  the  instructions  asked, 
could  not  have  misled  the  jury. 

It  must  appear  that  the  facts  existed  which  required  the  in- 
structions asked  ;  else  the  refusal  to  give  them  can  not  be  as- 
signed for  error.  Law  v.  Merrill,  6  Wendell,  268  ;  Wendell's 
Dig.  247. 

The  act  of  Jan.  14,  1829,  expressly  provides  that "  All  chain- 
men  necessary  shall  be  employed  by  the  person  wanting,  the 
surveying  done."  K.  L.  592  §  5.  (Gale's  Stat.  669.) 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 

It  appears  from  the  bill  of  exceptions  taken  in  this  cause,  that 
this  was  an  action  of  asmmpsit  commenced  by  Bailey,  the  plaint- 
iff below,  to  recover  of  Pearsons  and  Hamilton,  the  defendants, 
the  sum  of  $112  for  mone.y  paid  to  chainmen,  and  8420  for  the 
surveying,  laying  out  and  platting  town  lots  in  the  town  of 
Canal  Port  and  the  addition  thereto,  making  together  the  sum 
of  $532;  for  which  Bailey  obtained  judgment.  On  the 
trial  of  the  cause,  the  defendants  asked  the  Court  to  instruct 
the  jury,  that,  under  a  count  for  services  as  surveyor,  the 
plaintiff  could  recover  no  other  fees  than  such  as  are  allowed 
by  statute,  and  that  the  plaintiff  could  not  recover  for  money 
paid  to  chainmen,  where  the  surveyor  had  charged  twenty-five 
cents  for  each  lot  laid  out,  and  that  his  right  of  recovery 
must  be  limited  to  the  fees  allowed  by  statute. 

This  instruction  the  Court  refused  to  give,  and  the  c 
ants  excepted. 

By  the  10th  section  of  the  "  Art  to  provide  for  the  record- 
ing of  toum  plats?  passed  27ih  February,  1833,  it  is  provided 
•'That  the  county  surveyor,  who  shall  lay  out,  survey 
and  plat  *  any  town  or  addition,  shall  be  entitled  to 
receive  twenty-five  cents  for  each  and  every  m  and 
out  lot,  and  the  recoider  of  the  county,  recording  the  i  line, 


510  YANDALIA. 


Pearsons  et  al.  v.  Bailey. 


shall  receive  the  sum  of  four  cents  for  each  and  every  lot  the 
same  may  contain."  (R.  L.  601 ;  Gale's  Stat.  678.)  Under  this 
section  of  the  act,  it  is  clear  that  the  charge  of  twenty -five 
cents  for  each  lot  embraces  all  the  compensation  the  surveyor 
is  entitled  to  demand. 

If  to  lay  out,  survey,  and  plat  a  town,  it  is  necessary  to  employ 
chainmen,  it  is  then  as  much  the  duty  of  the  surveyor  to  em- 
ploy and  pay  them,  as  it  is  to  furnish  a  compass  and  chain,  or  to 
draw  the  map.  The  chainmen  are  a  part  of  the  means  by 
which  the  surveyor  is  enabled  to  perform  the  service.  No 
one  doubts  that  if  a  person  employs  a  mechanic  for  a  stipu- 
lated sum  to  build  a  house,  that  he  can  not,  in  addition,  charge 
for  the  persons  employed  in  making  mortar,  or  for  other 
laborers  employed  in  the  construction  of  the  house,  and  yet 
they  are  as  necessarj7  to  the  completion  of  the  job,  as  the 
chainmen  employed  by  a  surveyor.  In  neither  case  can  the 
work  be  done  without  the  employment  of  assistants  and  serv- 
ants, and  the  wages  paid  them  comes  out  of  the  sum  stipu- 
lated in  the  one  case,  and  the  fees  allowed  in  the  other. 

It  was,  however,  contended  in  the  argument,  that  the  5th 
section  of  the  "  Act  regulating  t\e  appointment  and  duties  of 
County  Surveyors"  passed  14th  January,  1829,  (R.  L.  592 ; 
Gale's  Stat,  669-70,)  by  which  it  is  provided,  that  "  All  chain- 
men  necessary  shall  be  employed  by  the  person  wanting  survey- 
ing done,"  made  it  incumbent  on  the  defendants  to  employ  the 
chainmen,  and  if  they  neglected  to  do  so,  the  surveyor  might 
employ  and  pay  them,  and  then  the  law  would  raise  an  implied 
promise  on  the  part  of  the  defendants  to  refund  the  money. 
A  careful  examination  of  this  act,  however,  satisfies  the  Court 
that  the  requisition  contained  in  the  section  quoted,  does  not 
apply  to  the  surveyors  of  town  plats.  The  next  section  of  the 
same  act  requires  that  before  any  surveys  under 'the  act  shall 
be  performed,  the  surveyors  shall  furnish  themselves  with 
field  notes  of  the  original  surveys,  and  the  act  also  gives  specific 
directions  as  to  the  manner  in  which  the  survey  shall  be 
made,  and  the  lines  and  corners  marked.  These  directions  can 
have  no  application  to  the  survey  of  town  plats  ;  and  they  are 
only  intended  to  apply  to  the  establishing  of  lines  and  corners 
of  sections  of  public  lands,  as  surveyed  by  the  United  States, 
and  to  such  subdivisions  thereof  as  convenience  may  require. 
The  fee  allowed  for  this  service  in  the  fee  bill,  is  so  small,  that  if 
the  surveyor  had  to  furnish  and  pay  the  chainmen,  he  would  fre- 
quently have  to  expend  more  than  his  whole  fee.  There  is, 
therefore,  a  great  propriety  under  the  act  for  the  appointment  of 
MO 


DECEMBER  TERM,  1838.  510 

The  Schooner  Constitution  v.  Woodworth. 

surveyors,  in  compelling  the  persons  wanting  surveying 
done,  *to  employ  the  chainmen.  The  same  reason  [*511] 
does  not  exist  under  the  act  directing  the  mode  of 
laying  out  towns.  The  compensation  allowed  under  this  act, 
it  is  believed,  is  sufficiently  liberal  to  require  a  surveyor  to 
pay  the  chainmen  out  of  his  fees.  It  is  also  to  be  observed, 
that  the  act  requiring  the  county  surveyor  to  be  employed 
to  survey  town  plats,  was  passed  subsequent  to  the  act  regu- 
lating the  appointment  of  county  surveyors  ;  and  it  is  fairly 
to  be  presumed  that  when  the  legislature  directed  that  the  pro- 
prietors of  towns  should  employ  the  county  surveyor  to  lay 
out,  survey  and  plat  towns,  and  affixed  a  compensation  for  the 
surveyor's  services,  that  they  meant  to  include  in  that  com- 
pensation, not  only  a  sufficient  remuneration  for  the  surveyor's 
time  but  all  the  expenses  that  he  would  be  under  the  neces- 
sity of  incurring,  in  order  to  perform  the  duty. 

If,  then,  chainmen  were  necessary,  as  we  have  no  doubt 
they  were,  and  there  was  no  express  promise  on  the  part  of 
the  defendants  to  pay  them,  we  are  of  opinion  it  was  the 
duty  of  the  surveyor  to  provide  them  at  his  own  expense. 

From  this  construction  of  these  statutes,  it  results  that  the 
Court  below  decided  erroneously,  in  refusing  the  instructions 
asked;  and  for  this  reason,  the  judgment  below  is  reversed 
with  costs.  But  as  the  bill  of  exceptions  enables  this  Court  to 
ascertain  the  sum  that  would  have  been  recovered,  if  the 
instructions  had  been  given,  it  is  unnecessary  to  send  this  case 
back  for  a  new  trial.  Judgment  is  accordingly  rendered  in 
this  Court  for  $420  ;  for  which  sum  and  the  costs  of  the  Court 
below,  Bailey  is  entitled  to  an  execution. 

Judgment  reversed,  and  judgment  rendered  in  this  Court. 


THE   SCHOONER  CONSTITUTION,  appellant,  v.  NELSON 
WOODWORTH,  appellee. 

Appeal  from  the  Municipal  Court  of  the  City  of  Chicago. 

APPEAL — TRIAL  DE  NOVO.— Appeals  for  the  removal  of  causes  from  an  in- 
ferior to  a  superior  court,  for  the  purpose  of  obtaining  trials  dc  /two,  are  un- 
known to  the  common  law,  and  can  only  be  prosecuted  where  they  are  ex- 
pressly given  by  statute. 

SAME — SEIZURE  OK  VESSEL—PRACTICE.— In  order  to  enable  tni  owner 
or  consignee  of  a  vessel  attached  under  the  "  Act  authorizing  the  eeizureqf 
boats  and  other  vessels  by  attachment,"  to  take  an  appeal  from  ths  judg- 

CITED:  Right  of  appeal,  statutory.    81  111.  279;  18  111.  136;  13  111.  634. 


511  YANDALIA. 


The  Schooner  Constitution  v.  Woodworth. 


ment  of  a  justice  of  the  peace  in  such  case,  he  should  make  himself  a  party 
defendant  to  the  suit  before  the  justice. 

Sed  quere,  Whether  an  appeal  can  be  taken  from  the  judgment  of  a  jus- 
tice of  the  peace,  under  that  act. 

JUDGMENT  was  rendered  in  this  cause  by  F.  A.  Howe,  a  jus- 
tice of  the  peace  of  Cook  county,  residing  within  the 
[*512]     city  of  ^Chicago,  against  the  schooner  Constitution, 
for  $49.50  and  costs.     On  the  appeal  to  the  Munici- 
pal Court,  at  the  April  term,  1838,  the  Hon.  Thomas  Ford 
presiding,  the  appeal  was  dismissed. 

J.  GRANT  and  F.  PEYTON,  for  the  appellant,  cited  R.  L.  95, 
395.  (Gale's  Stat.  409.) 

L.  DAVIS  and  F.  FOEMAN,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  attachment  issued  by  a  justice  of  the  peace,  in 
favor  of  Woodworth,  against  the  schooner  Constitution,  for 
the  services  of  Woodworth  on  board  the  schooner.  On  the 
trial  before  the  justice  of  the  peace,  a  judgment  was  given  in 
favor  of  the  plaintiff,  against  the  schooner,  for  $49.50.  Sub- 
sequently to  the  judgment,  Gurdon  S.  Hubbard  and  Henry  G. 
Hubbard,  for  and  in  behalf  of  the  schooner,  filed  an  appeal 
bond  in  the  office  of  the  clerk  of  the  Municipal  Court  of  the 
City  of  Chicago,  and  the  cause  was  docketed  in  said  Court  for 
trial.  On  the  hearing  of  the  cause  in  the  Municipal  Court, 
that  Court,  on  motion  of  Woodworth,  dismissed  the  suit  from 
the  docket,  and  gave  judgment  for  costs  in  favor  of  the  plaint- 
iff below,  against  the  defendant.  To  reverse  this  judgment, 
an  appeal  has  been  brought  to  this  Court  by  Gurdon  IS.  and 
Henry  G.  Hubbard,  for  and  in  behalf  of  said  schooner,  and  the 
only  error  assigned  is,  that  the  Court  erred  in  dismissing  the 
appeal. 

The  attachment  issued  by^  the  justice,  was  in  pursuance  of 
"An  Act  authorising  the  seizure  of  boats  and  other  vessels  by 
attachment  in  certain  cases"  (R.  L.  95 ;  Gale's  Stat.  73,) 
passed  13th  February,  1833.  The  proceedings  before  the 
justice  were  regular,  and  the  only  question  we  are  called  upon 
to  decide  is,  whether  an  appeal  lies  from  the  decision  of  the 
justice  in  this  case.  The  act  expressly  gives  a  justice  of  the 
peace  jurisdiction  to  issue  an  attachment,  but  is  silent  on  the 
subject  of  appeals,  or  any  other  mode  of  reviewing  the 
decision  of  the  justice.  Appeals  for  the  removal  of  causes 
from  an  inferior  to  a  superior  court,  for  the  purpose  of  obtain- 
ing trials  de  novo,  are  unknown  to  the  common  law,  and  can 


DECEMBER  TERM,  1838.  512 

King  v.  Dale. 

only  be  prosecuted  where  they  are  expressly  given  by  statute 
It  was  contended  on  the. argument,  that  the  right  to  appeal 
was  found  in  the  30th  section  of  the  "  Act  concerning  Justices 
of  the  Peace  and  Constables?  .(R.  L.  395;  Gale's  Stat  409) 
passed  3d  February,  1827.  But  admitting  that  the  authority 
to  take  an  appeal  under  this  section  extends  to  proceedings 
and  judgments  had  before  justices  of  the  peace  under  other 
statutes,  on  which  point  we  give  no  opinion,  still,  in  order  to 
entitle  a  party  to  take  an  appeal  under  that  act,  the  appellant 
must  execute  a  bond  with  security  to  the  opposite 
*party.  The  attachment  and  judgment  is  against  the  [*513] 
schooner,  consequently  this  requisition  of  the  act, 
can  not  in  a  case  so  situated,  be  complied  with.  If  the  Hub- 
bards  were  either  owners  or  consignees  of  the  vessel,  they 
should  have  made  themselves  defendants  under  the  5th  section 
of  the  act  authorizing  the  justice  to  issue  the  attachment 
They  would  then  have  been  parties  to  the  suit,  and  in  a  situa- 
tion to  take  an  appeal,  if  an  appeal  is  allowed  by  law.  The 
appeal  being  irregularly  taken,  was  correctly  dismissed  by  the 
Court. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


WILLIAM  KING,  appellant,  v.  JOHN  DALE,  appellee. 

Appeal  from  Hamilton. 

JURORS — Co MPETENCY — CuiM.  CoN.-y-On  the  trial  of  a  suit  for  a  m'm. 
con.  between  the  defendant  and  the  wife  of  the  plaintiff,  a  juror  was  pro- 
posed, who,  being  examined,  stated  that  he  had  heard  the  testimony  against 
the  wife  of  the  plaintiff,  who  was  indicted  for  adultery  with  the  defendant, 
and  from  that  testimony  he  had  formed  and  expressed  an  opinion,  but  had 
not  formed  any  opinion  in  this  case,  not  knowing  that  there  was  a  civil  suit 
then:  He  Id,  that  he  was  a  competent  juror,  it  not  appearing  that  the  crime 
for  which  the  wife  was  indicted  was  committed  before  or  after  the  com- 
mencement of  the  suit  for  crim.  con. 

EVIDENCE. — In  a  suit  for  a  crim.  con.,  a  marriage  license  issued  in  the 
State  of  Tennessee,  with  a  certificate  indorsed  thereon  by  a  justice  of  the 
peace,  that  he  had  solemnized  the  marriage,  was  admitted  in  evidence,  the 
official  character  of  the  officer  granting  the  license,  and  also  that  of  the  jus- 
tice of  the  peace,  being  certified  by  the  clerk,  the  keeper  of  the  records,  un- 
der his  official  seal,  and  the  presiding  justice  having  certified  to  the  au- 
thority and  official  character  of  the  clerk:  Held,  that  the  license  and  certifi- 
cates were  properly  admitted. 

DEPOSITION — PRACTICE. — ft  is  a  valid  object;on  to  a  deposition,  that  it 
was  dictated  or  written  by  an  attorney  in  the  c«,u<:  •;  but  tlui  objection  must 
be  supported  by  proof  of  the  fact. 

Where  a  deposition  is  read  in  evidence  which  proves  nothing  for  either 
party,  the  Court  will  not  inquire  whether  it,  was  properly  admitted. 

643 


513  VANDALIA. 


King  r.  Dale. 


WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  for  a  crim.  con.     Dale,  the  plaintiff  below, 

obtained  a  verdict  and  judgment  against  the  defendant,  K'ng, 

from  which  he  appealed  to  this  Court,  and  assigned  for  error: 

1.  That  tiie  Court  permitted  an  individual  to  be  sworn  as  a 
juror,  who  had  formed  and  expressed  an  opinion  as   to   the 
merits  of  the  case. 

2.  That  the  Court  permitted  to  be  read  in  evidence,  a  cer- 
tificate of  the  marriage  in  Tennessee,  between  Dale  and  his 
wife,  without  its  being  properly  authenticated,  and, 

3.  That  the  Court  allowed  depositions  to  be  read  in  evidence, 

which  were  objected  to. 
[*514]         *One  of  the  facts  assumed  in  the  first  assignment 

of  error  is  contradicted  by  the  record.  Hardy,  the 
individual  objected  to  as  a  juror,  was  not  swrorn  upon  the  jury, 
but  the  objection  to  him  was  overruled  by  the  Court,  after  he 
had  been  sworn  and  interrogated  as  to  his  having  formed  and 
expressed  an  opinion  upon  the  merits  of  the  case.  In  his  exam- 
ination on  that  point  he  stated  "  That  he  had  heard  the  testi- 
mony against  Cinthia  Dale,  who  was  indicted  for  adultery  with 
the  defendant.  King,  and  from  that  testimony  he  had  formed 
and  expressed  an  opinion  ;  but  had  not  formed  any  opinion  in 
this  case,  not  knowing  that  there  was  a  civil  suit  then."  This 
statement  is  very  indefinite  as  to  the  connection  between  the 
cause  in  which  the  proposed  juror  had  formed  an  opinion,  and 
the  one  before  the  Court ;  and  it  does  not  appear  with  any 
degree  of  certainty,  that  the  criminal  intercourse  between 
Mrs.  Dale  and  King,  which  was  the  foundation  of  the  criminal 
prosecution  against  her,  did  not  take  place  subsequently  to 
the  institution  of  the  suit  then  before  the  Court.  If  such  was 
the  fact,  (and  nothing  to  the  contrary  is  shown,)  then  there 
was  no  objection  to  the  individual  as  a  juror,  because  the 
plaintiff's  right  to  recover  depended  upon  the  proof  of  cir- 
cumstances anterior  to  those  which  may  have  been  the  foun- 
dation of  the  proposed  juror's  opinion. 

The  second  assignment  of  error,  which  questions  the  suffi- 
ciency of  the  authentication  of  the  certificate  of  marriage,  is 
not  supported  by  the  facts  in  the  case.  An  inspection  of  the 
record  will  show  it  to  contain  an  exemplified  copy  of  a  license 
issued  in  the  State  of  Tennessee,  for  the  marriage  of  John 
Dale  to  Cinthia  Smith.  On  the  back  of  this  license  is  indorsed 
a  certificate  of  a  justice  of  the  peace,  that  he  had  solemnized 
the  marriage.  The  official  character  of  the  officer  granting 
the  marriage  license,  and  also  that  of  the  one  performing  the 
ceremony,  is  authenticated  by  the  certificate  of  the  clerk,  the 
keeper  of  the  records,  under  his  seal  of  office.  The  presiding 

544 


DECEMBEE  TEEM,  1838.  514 

Holliday  v.   Swailes. 

justice  then  certifies  to  the  authority  and  official  character  of 
the  clerk,  whose  attestation,  in  turn,  verifies  that  of  the  jus- 
tice. These  several  authentications  are  by  the  accredited 
officers  of  the  law,  and  in  the  form  and  order  prescribed  by 
the  act  of  Congress,  to  entitle  records  and  public  acts  to  the 
same  faith  and  credit  in  the  courts  of  the  several  States  that 
they  have  by  law  in  the  courts  of  the  State  from  whence  they 
are  taken.  The  certificate  of  marriage  was  therefore  properly 
received  in  evidence. 

The  third  assignment  of  error  applies  only  to  the  depositions 
of  Freeman  and  Vaught,  The  reading  in  evidence  of  Vaught's 
deposition  was  objected  to  on  the  ground  that  it  was  in  the 
handwriting  of  McClcrnand,  one  of  the  attorneys  for  the 
plaintiff.  It  is  certainly  a  valid  objection  to  a  deposition,  that 
it  has  been  dictated  or  drawn  by  an  attorney  in  the 
cause;  but  the  objection  *must  be  supported  by  proof  [*515] 
of  the  fact.  This  was  not  done  in  this  case.  There 
is  no  evidence  whatever,  that  the  deposition  was  written  by 
McClernand,  nor  is  it  even  satisfactorily  proved  that  he  was 
an  attorney  in  the  cause.  All  the  testimony  in  relation  to 
that  point  is,  that  Scates,  the  attorney  who  conducted  the 
cause  for  the  plaintiff,  told  McClernand  that  he  wished  him 
to  assist  him  in  the  suit ;  bat  it  does  not  appear  that  he  con- 
sented to  do  so,  or  that  he  ever  did  appear  in  the  case  as  at- 
torney, or  in  any  other  capacity. 

With  respect  to  Freeman's  deposition,  it  is  unnecessary  to 
inquire  into  the  sufficiency  of  the  objections  to  its  being  re- 
ceived in  evidence,  because  it  proves  nothing  for  or  against 
either  party,  and  could  not  therefore  have  influenced  the  decis- 
ion of  the  jury  ;  for  this  reason,  its  having  been  read  in  evi- 
dence can  not  be  assigned  for  error. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


JAMES    HOLLIDAY,  appellant,   v.    THOMAS    SWAILES, 

appellee. 

Appeal  from  Morgan. 

"ACT  nKCiULATiNO    iwcixwuiiKH  "— PuACTiCE.—  In  procpeclingB  under 
the  "Act  regulating  Inclo*&res,"  it  is  necessary  that  the  justices  of  th 
peace  before  whom  proceedings  are  had  should  notify  the  defendant  c 


K— APPEAL.— An  appeal  lies  from  the  decision  of  two  justices  of  the 
peace,  under  the  "Act  regulating  btclosures." 

You  1-35  646 


515  VANDALIA. 


Hollulay  v.  Swailes. 


ON  the  27th  day  of  June,  1837,  the  following  transcript 
was  filed  in  the  office  of  the  clerk  of  the.  Morgan  Circuit 
Court : 
"  Thomas  Swailes 

v. 
James  Holliday. 

This  day  came  Thomas  Swailes  and  filed  his  bill  against 
James  Holliday,  for  making  a  partition  fence  upon  the  line 
dividing  the  land  of  the  said  Swailes  and  Holliday,  the  fence 
aforesaid  having  been  made  agreeable  to  an  order  from  us  to 
the  said  Swailes,  dated  the  12th  day  of  May,  A.  D.  1837— 
and  witnesses  having  been  heard  on  oath  touching  the  equity 
of  said  demand,  and  it  being  further  proved  that  said  parti- 
tion fence  dividing  the  lands  of  the  aforesaid  Swailes  and  Hol- 
liday, is  in  Township  fifteen  North,  Range  eleven  West,  in 
Morgan  county:  It  is  considered  that  the  demand  of 
[*516]  said  Swailes  is  just,  and  is  hereby  allowed,  *and  that 
judgment  be  rendered  against  said  Holliday  for  fifty- 
eight  dollars  and  eighty  cents,  and  that  warrant  issue  against 
said  Holliday's  personal  estate,  agreeably  to  the  statute  in  such 
case  made  and  provided. 

Given  under  our  hands  and  seals  this  14-th  day  of  June,  1837. 
SAMUEL  S.  BROOKS,  J.  P.     [L.  s.] 
MATTHEW  STACY,  J.  P.        [L.  s.] 

Morgan  County,  \ 

I  hereby  certify  the  foregoing  to  be  a  true  copy  of  the  order 
or  judgment  on  my  docket  in  the  case  of  Thomas  /Swailes  v. 
James  Holliday. 

SAMUEL  S.  BROOKS,  J.  P." 

On  the  same  day  Holliday  filed  in  the  office  of  the  clerk  of 
said  Court  an  appeal  bond. 

At  the  October  term,  1837,  of  said  Court,  Swailes  moved  to 
dismiss  the  appeal.  Whereupon  Holliday  entered  a  cross- 
motion  to  vacate  and  annul  the  proceedings  of  the  justices, 
which  was  overruled,  and  the  motion  of  Swailes  sustained. 
Holliday  appealed  to  this  Court. 


State  of  Illinois,  , 

1  ss. 


WILLIAM  THOMAS,  for  the  appellant. . 
MURRAY  McCoNNELL,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  thfc  opinion  of  the  Court : 

The  record  shows  this  to  have  been  a  proceeding  under  the 

"Act regulating  Inclosures,"  (E.  L.  261 ;  Gale's  Stat.  277,)  and 

that  ujx>n  the  application  of  Swailes  to  two  justices,  they  ren- 

540 


DECEMBEE  TEEM,  1838.  516 

Holliday  v,  Swailes. 

dered  a  judgment  in  his  favor  against  Holliday  for  $58.80, 
being  a  moiety  of  the  estimated  cost  of  a  division  fence. 
From  this  judgment  Holliday  appealed  to  the  Circuit  Court, 
and  moved  the  Court  to  reverse  the  judgment  upon  the 
ground  that  he  had  not  appeared  before  the  justices,  or  been 
notified  to  do  so,  which  also  appears  from  the  record.  The 
Court  overruled  this  motion,  and,  upon  the  application  of 
Swailes,  dismissed  the  appeal.  In  support  of  this  decision,  it 
is  argued,  that  inasmuch  as  the  act  authorizing  this  proceed- 
ing does  not  require  the  defendant  to  be  notified,  nor  provide 
for  an  appeal  from  the  justices'  judgment,  that  therefore  no 
notice  is  necessary,  and  that  the  judgment  is  final.  The  cor- 
rectness of  this  inference  can  not  be  admitted.  If  it  is  even 
conceded  that  the  act  conferring  general  jurisdiction  on  jus- 
tices, which  requires  "  all  suits  before  them  to  be  commenced 
by  summons,"  is  to  be  construed  to  apply  only  to  cases 
arising  under  that  act,  it  was  nevertheless  necessary  that  the 
justices  should  have  notified  the  defendant  of  the  prosecu- 
tion against  him.  It  would  be  a  violation  of  one  of 
the  first  principles  of  justice  and  of  judicial  *proceed-  [*517] 
ings,  to  try  and  decide  upon  the  rights  of  an  individ-  , 
ual  either  civilly  or  criminally,  without  notice;  and  conse- 
quentty  without  affording  him  an  opportunity  of  defending 
himself.  The  question  of  appeal  is  settled  by  the  act  allow- 
ing appeals  in  certain  cases.  (Acts  of  1835,  153;  Gale's  Stat. 
182.)  That  act  authorizes  appeals  in  qui  tarn,  and  other 
actions  for  forfeitures  and  penalties.  This  case  is  of  the  latter 
denomination.  The  warrant  against  Holliday  was  for  a  claim 
in  the  nature  of  a  penalty  charged  ,'to  have  been  incurred  by 
him  in  neglecting  to  make  and  keep  in  repair  a  division  fence 
between  him  and  the  plaintiff  agreeably  to  the  act  regulating 
inclosures. 

The  judgment  of  the  Circuit  Court  is  therefore  reversed, 
and  also  that  of  the  justices,  for  irregularity. 

Judgment  reversed. 

M7 


517  VANDALIA. 


Elliot  v.  Whipple. 


THOMAS  ELLIOT,  appellant,  v.  WILLIAM  SNEED, 
appellee. 

Appeal  from  Clay. 

CONSTABLE — LIABILITY  FOR  MONEY  PAID  OVER. — A  constable,  who  hns 
collected  an  execution  issued  upon  a  judgment  recovered  in  a  suit  by  attach- 
ment, and  paid  the  money  over  upon  the  order  of  the  plaintiff  in  the  attach- 
ment, is  not  liable  to  an  action  by  the  attachment  debtor — after  the  re- 
versal of  such  judgment  on  appeal — for  the  money  so  collected  and  paid 
over.  Nor  is  he  liable  to  a  garnishee  of  whom  he  has  collected  money  on 
such  execution. 

LIABILITY  FOR  MONEY  PAID  ON  JUDGMENT  SUBSEQUENTLY  REVERSED. — 
Where  a  constable  collected  money  upon  a  judgment  obtained  by  W.  against 
R.,  before  a  justice  of  the  peace,  and  paid  the  same  to  G.,  upon  the  order  of 
E.,  to  whom  the  judgment  was  assigned;  and  afterward  the  judgment  was 
reversed  on  appeal,  and  the  constable  paid  the  money  back  which  he  had 
collected  of  R:  Held,  that  E,  the  assignee  of  the  judgment,  was  not  liable  to 
refund  the  money  to  the  constable;  W.  alone  being  liable. 

PRACTICE. — Semble,  That  where  a  judgment  is  assigned,  execution  should 
issue  in  the  name  of  the  assignor.  The  assignment  does  not  change  the 
form  of  the  execution,  or  the  parties  to  it. 

Where  a  constable  collected  money  on  an  execution  issued  upon  a  judg- 
ment which  was  afterward  reversed,  and  paid  the  same  over,  upon  the 
order  of  the  plaintiff;  and  after  the  reversal  of  the  judgment,  the  constable 
paid  back  the  money  to  the  defendant:  Held,  that  the  constable  might 
maintain  an  action  against  the  plaintiff,  for  money  paid  to  his  use. 

THIS  cause  was  tried  at  the  August  term,  1837,  of  the  Clay 
Circuit  Court,  before  the  Hon.  Justin  Harlan.  Judgment  was 
rendered  for  the  appellee,  for  $25  and  costs,  from  which  an 
appeal  was  taken  to  this  Court. 

O.  B.  FICKLIN,  for  the  appellant. 
A.  C.  FRENCH,  for  the  appellee. 

[*518]         *WILSON,  Chief   Justice,  delivered  the   opinion  of 

the  court: 

This  cause  is  submitted  upon  the  following  facts:  Hugh 
Ronalds  commenced  a  suit  against  Thomas  Elliot,  before 
James  L.  Wickersham,  a  justice  of  the  peace  of  Clay  county, 
and  recovered  judgment  against  said  Elliot.  Wickersham 
being  indebted  to  Elliot,  entered  up  satisfaction  of  the  judg- 
ment. Ronalds  sued  out  of  the  Circuit  Court  a  writ  of  man- 
damus to  compel  the  said  justice,  Wickersham,  to  issue  an 
execution  against  said  Elliot.  Wickersham  thereupon  issued 
an  execution  against  Elliot,  and  put  the  same  into  the  hands 

548 


DECEMBER  TEEM,  1838.  518 

Elliot  v.  Whipple. 

of  Nathaniel  Duff,  constable  of  said  county,  who  collected  the 
money  thereon.  Wickersham  then  sued  out  an  attachment 
against  Ronalds,  and  garnisheed  said  constable.  Duff.  The 
writ  of  attachment  went  into  the  hands  of  said  plaintiff, 
Sneed,  who  also  was  an  acting  constable,  and  who  was  surety 
for  "Wickersham  in  the  attachment  bond.  On  the  trial  of  the 
attachment,  judgment  went  against  Eonalds,  and  also  against 
said  constable,  Duff,  as  garnishee,  for  the  amount  of  money  in 
his  hands,  which  he  had  collected  from  Elliot,  for  Ronalds. 
An  execution  followed  this  attachment,  and  went  into  the 
hands  of  Sneed,  the  plaintiff  in  this  suit,  who  collected  the 
money  from  Duff,  garnishee  as  aforesaid.  Wickersham 
assigned  the  judgment  on  which  this  execution  issued,  to 
Elliot,  and  Elliot  gave  an  order  on  said  Sneed,  and  in  favor  of 
Peter  Green,  for  twenty-five  dollars,  which  Sneed  paid  accord- 
ingly to  Green,  in  current  bank  paper.  Afterward  Ronalds 
removed  the  judgment  against  himself  and  Duff  upon  said 
attachment,  into  the  Circuit  Court  by  certiorari  and  reversed 
the  judgment.  Ronalds  then  brought  his  suit  against  Duff, 
constable  as  aforesaid,  and  recovered  judgment  for  the  money 
which  Duff  had  paid  over  to  Sneed,  on  the  attachment  execu- 
tion, and  collected  the  same.  Duff  then  sued  Sneed  for  the 
money  that  he  had  paid  Sneed  on  the  attachment  execution, 
as  garnishee  of  Ronalds,  and  recovered  and  collected  the  same. 
Whereupon  Sneed  now  brings  this  suit  to  recover  the  money 
which  he  paid  to  Peter  Green  upon  Elliot's  order,  as  above 
stated,  he,  the  said  Sneed,  having  been  compelled  to  pay  the 
same  back  to  Duff,  constable  and  garnishee,  as  aforesaid. 

From  the  above  statement,  which  is  submitted  by  the  par- 
ties, as  containing  all  the  facts  in  the  case,  it  is  clear  that 
Sneed,  the  plaintiff  below,  has  mistaken  the  person  against 
whom  he  has  recourse.  Wickersham  received  the  fruits  of 
the  judgment  on  the  attachment,  and  applied  it  to  the  extin- 
guishment of  a  debt  due  from  him  to  Elliot.  The  judgment 
being  assigned  to  Elliot,  did  not  create  any  more  liability  upon 
him  than  was  imposed  upon  Green,  by  the  order  given  by 
Elliot  to  him,  to  receive  the  amount  of  the  judgment  from  the 
constable.  The  benefit  to  Wickersham,  and  his  liabil- 

[*519] 


the  ordi- 
nary course  of  'business.'  In  the  latter  case,  it  could  not  be 
contended  that  the  individual  receiving  the  money  would  bo 
bound  to  see  that  the  judgment  was  correct,  or  to  inquire 
into  the  source  from  whence  Wickersham  obtained  it.  (i  may 
be  proper  to  observe,  that  the  execution  upon  Wickersham  a 


549 


519  VANDALIA. 


Sheldon  v.  Reihle  et  al. 


judgment  should  have  been  issued  in  his  name,  and  not  in 
the  name  of  Elliot ;  and  also  that  the  judgments  against  the 
constables  were  erroneous ;  but  as  Sneed  has  paid  the  money 
that  Wickersham  was  liable  for  in  the  lirst  instance,  to  Ro- 
nalds, he  is  entitled  to  recover  it,  as  money  paid  to  the  use  of 
Wiekersham. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs. 

Judgment  reversed. 


DAVID  SHELDON,  plaintiff  in  error,  v.  WILLIAM  REIHLE 
and  JOSEPH  BAINS,  defendants  in  error. 

Error  to  Madison. 

ERROR — DISCRETION. — A  motion  to  dismiss  an  appeal  from  the  verdict 
of  a  jury  on  the  trial  of  the  right  of  property  before  a  sheriff,  is  addressed 
to  the  discretion  of  the  Court,  and  the  decision  of  the  Circuit  Court  on  such 
motion,  can  not  be  assigned  for  error. 

AUTHORITY  OF  ATTORNEY. — The  Supreme  Court  will  presume  that  a 
bond  executed  by  an  attorney  in  the  name  of  his  principals,  and  filed  in  the 
Court  below,  was  executed  by  a  person  duly  authorized,  and  that  the  Court 
below  was  satisfied  of  that  fact,  unless  the  contrary  appears. 

APPEAL  BOND. — A  bond,  on  appeal,  from  the  decision  of  a  sheriff's  jury 
on  the  trial  of  the  right  of  property,  may  be  executed  by  an  attorney  in 
fact. 

EVIDENCE. — On  the  trial  of  the  right  of  property  levied  on  by  attach- 
ment, the  writ  of  attachment  and  return  thereon,  are  admissible  in  evi- 
dence. 

TRIAL  OF  RIGHT  OF  PROPERTY — VERDICT. — The  verdict  of  a  jury  in 
the  Circuit  Court,  on  the  trial  of  the  right  of  property,  found  the  title  in 
the  defendant  in  the  attachment:  Held,  that  the  finding  was  sufficiently 
formal  and  explicit,  as  it  negatived  the  title  set  up  by  the  claimant. 

ON  the  27th  of  September,  1832,  Reihle  and  Bains  sued  out 
of  the  Morgan  Circuit  Court,  a  writ  of  attachment  against  the 
estate  of  one  Samuel  P.  Judson,  which  was  levied  by  the  sheriff 
of  Morgan  county,  upon  certain  personal  property  which  was 
claimed  by  David  Sheldon.  The  sheriff  thereupon  summoned 
a  jury  to  try  the  right  of  property,  and  a  verdict  was  rendered 
for  the  claimant.  Reihle  and  Bains  appealed  to  the  Circuit 
Court  of  Morgan  county,  and  delivered  to  the  sheriff  a  bond 
executed  as  follows : 

"  WILLIAM  REIHLE, 

JOSEPH  BAINS,  [L.S.] 

By  their  attorney  in  fact, 

STEPHEN  B.  SEXTON, 
THOMAS  PUYNE,  [L.S.] 

JOSEPH  CODDINGTON,       [L.S.]': 


DECEMBER  TEEM,  isss.  520 

Sheldon  v.  Reihle  et  al. 

*The  bond  was  duly  returned  by  the  sheriff  with  the  [*520] 
writ  of  attachment,  and  tiled  in  Court. 

A  change  of  venue  was  had  to  the  Madison  Circuit  Court ; 
and  at  the  October  terra,  1833,  the  Hon.  Theo.  W.  Smith  pre- 
siding, Sheldon  moved  to  dismiss  the  appeal  for  the  following 
reasons : 

"  1.  No  appeal  bond  has  been  executed  and  given  by  Reihle 
and  Bains,  the  appellants  in  this  case,  as  required  by  law. 

2.  No  appeal  bond  has  been  given  in  this  case  by  any  per- 
son properly  and  legally  authorized  by  the  appellants. 

3.  The  appeal  bond  given  in  this  case  is  not  executed  by 
the  proper  parties,  and  is  not  such  as  the  law  requires." 

The  Court  overruled  this  motion,  and  an  exception  was 
taken  to  the  decision. 

On  the  trial  in  the  Circuit  Court,  the  defendants  in  error, 
Heinle  and  Bains,  offered  to  read  in  evidence  the  writ  of  at- 
tachment and  return  thereon,  showing  a  levy  upon  the  prop- 
erty claimed  by  the  plaintiff  in  error,  which  was  objected  to 
by  Sheldon,  but  admitted  by  the  Court.  An  exception  to  this 
decision  was  noted,  and  a  bill  of  exceptions  taken. 

The  jury  found  the  title  of  the  property  to  be  in  the  de- 
fendant, Judson.  Judgment  was  rendered  for  the  plaintiffs  in 
the  Court  below,  Reihle  and  Bains,  upon  this  verdict. 

JESSE  B.  THOMAS  and  DAVID  PBICKETT,  for  the  plaintiff  in 
error. 

WM.  THOMAS,  for  the  defendants  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

Several  errors  are  assigned  for  the  reversal  of  this  judgment 
— none  of  which  are  considered  sufficient.  The  motion  to  dis- 
miss the  appeal  from  the  verdict  of  the  sheriff's  jury  for  the 
trial  of  the  right  of  property,  was  addressed  to  the  discretion 
of  the  Court,  and  the  decision  upon  that  motion,  therefore, 
can  not  be  assigned  for  error.  The  appeal  bond  executed  by 
an  attorney  in  fact,  is  sufficient;  and  as  nothing  to  the  con- 
trary appears,  we  must  presume  that  the  Court  below  was 
satisfied  that  the  attorney  was  properly  constituted  such. 

The  attachment  was  properly  received  as  evidence,  for  the 
purpose  of  showing  the  plaintiff's  right  to  take  the  property, 
and,  for  that  purpose,  was  the  only  evidence  that  could  be 
adduced. 

The  finding  of  the  jury  was  sufficiently  formal  and  explicit ; 
their  deciding  the  goods  to  belong  to  Judson,  the  debtor  in 


651 


520  YANDALIA. 


Illinois  and  Michigan  Canal  v.  Calhouh. 


the  attachment,  negative's  the  title  to  them  set  up  by  the 
c'aimant. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON.  See  Campbell  et ,  al.  v.  The  State  Bank  of  Illinois, 
ante  423;  Pearce  et  al.  v.  Swan,  ante  266,  and  note;  Arcnz  v.  Reihle  ot  al.. 
ante  340.; 


[*521]  *THE  BOARD  OF  COMMISSIONERS  OF  THE  IL- 
LINOIS AND  MICHIGAN  CANAL,  plaintiffs  in 
error,  v.  JOHN  CALHOUN,  defendant  in  error. 

Error  to  Cook. 

'  SALE  OP  CANAL  LOTS — ACT  OF  1836 — SPECIAL  NOTICE. — In  a  sale  of 
canal  lots  or  lands  under  the  act  of  Jan.  9,  1836.  a  special  notice  of  the  terms 
of  sale  was  read,  which  among  other  things  declared,  "That  in  case  any 
bidder  shall  fail  to  comply  with  the  terms  of  sale,  during  the  days  of  sale,  on 
which  the  sale  of  the  lot  is  made,  his  bid  will  be  forfeited,  and  the  lot  re- 
sold— the  first  purchaser  being  held  accountable  to  the  commissioners  fot 
any  loss  that  may  accrue  from  the  sale;  but  entitled  to  no  profit  therefrom:" 
Held,  that  the  condition  was  unauthorized  by  law  and  void. 

In  the  sales  of  canal  lots  or  lands  under  the  act  of  January  9,  1836,  the 
Canal  Commissioners  had  no  authority  to  pnnex  any  other  conditions  or 
terms  than  those  provided  in  said  act.  and  the  act  of  Congress  in  relation  to 
the  duties  of  registers  and  receivers  upon  the  sale  of  the  public  lands  of  the 
United  States. 

SAME — PLEADING. — A  count  in  a  declaration  against  a  purchaser  of  canal 
lands  or  lots,  for  failure  to  complete  the  purchase,  under  the  act  of  January 
9,  1836,  must  contain  an  averment  that  the  defendant  purchased  the  lot  at 
a  public  sale,  and  that  he  was  the  highest  bidder  therefor. 

THIS  cause  was  heard  in  the  Court  below  at  the  May  term, 
1837,  before  the  Hon.  John  Pearson.  Judgment  was  rendered 
for  the  defendant  in  error. 

JAMES  GKANT,  for  the  plaintiffs  in  error. 
T.  FORD,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
The  question  presented  for  consideration  in  this  case,  in- 
volves the  regular  execution  of  the  powers  of  the  Board  of 
Canal  Commissioners,  relative  to  the  sale  of  lots  in  the  town 
of  Chicago.  The  declaration  of  the  plaintiffs  contains  five 
counts,  each  of  which  was  demurred  to  separately.  The  first 

562 


DECEMBER  TERM,  1838.  521 

Illinois  and  Michigan  Canal  i;  Calhoun. 

and  third  set  forth  a  puVic  sa^e  of  a  lot  in  the  town  of  Chica- 
go, to  the  defendant,  for  §2:,),OUO  as  the  highest  bidder,  at 
the  sale  made  by  an  auctioneer,  as  the  agent  of  the  hoard. 

That  at  that  sale  a  special  notice  of  the  terms  of  sale  was 
read,  which  among  other  tilings  declared,  "That  in  case  any 
bidder  shall  fail  to  comply  with  the  terms  of  sale,  during  the 
days  of  sale,  on  which  the  sale  of  the  lot  is  made,  his  bid  will 
be  forfeited  and  the  lot  resold,  the  first  purchaser  being  held 
accountable  to  the  commissioners  for  any  loss  that  may  accrue 
from  the  sale ;  but  entit'ed  to  no  'profit  therefrom."  The 
plaintiffs  aver  a  refusal  by  the  defendant  to  complete  the  pur- 
chase, and  make  payment  of  the  amount  required  to  be  paid, 
according  to  the  terms  of  the  sale;  and  that  in  pursuance  of 
the  conditions  annexed  to  the  sale,  and  in  consequence  of  such 
refusal,  they  resold  the  lot  at  a  subsequent  public  sale, 
for  a  much  less  sum  than  the  amount  bid  by  *the  de-  [*522] 
fondant.  To  recover  this  difference  the  present  ac- 
tion is  brought.  The  second,  fourth  and  fifth  counts  are  fora 
sa'e  by  the  plaintiffs,  and  an  agreement  by  the  defendant,  to 
purchase  and  take  the  lot,  without  reference  to  the  special 
conditions,  and  do  not  aver  that  the  sale  was  a  public  one. 
The  Circuit  Court  sustained  each  of  the  demurrers;  and  this 
is  the  cause  of  error  now  assigned. 

To  understand  correctly  the  decision  of  the  Circuit  Court, 
it  will  be  necessary  to  examine  the  act  creating  the  Board  of 
Canal  Commissioners,  and  more  particularly  such  portions  ^  of 
it  as  prescribe  their  duties  with  reference  to  the  disposition 
of  the  lots  of  which  the  one  in  question  formed  a  part ;  and 
also,  an  act  of  Congress  in  connection  therewith.  By  the  33d 
section,  (Acts  of  1836,  150;  Gale's  Stat.  120,)  of  the  "  Act  for 
the  construction  of  the  Illinois  and  Michigan  Canal,"  ap- 


will  best  promote  the  interest  of  the  canal  fund;  and  before 
making  such  sale,  public  notice  shall  be  given  thereof  in  five 
newspapers  at  least  eight  weeks  prior  to  any  sale.  It  is  fur- 
ther provided,  that  if  no  sale  be  made  on  the  day  named,  such 
sale  may  be  made  at  any  time  thereafter,  on  giving  a  similar 
notice  and  upon  the  terms  in  the  act  specified. 

The  34th  section  provides  for  the  attixing  a  value  to  each 
lot,  and  forbids  its  being  sold  for  less  than  such  value ;  and 
that  all  lots  not  sold  on  the  day  of  offering,  shall  be  again  ad- 
vertised for  sale  ;  and  shall  continue  to  be  advertised  for  sale, 
until  the  whole  are  sold.  It  further  declares  that  no  lot  shall 
be  sold  otherwise  than  at  public  sale,  to  the  highest  bidder. 


558 


522  A' AX  DA  I,  I  A. 


Illinois  and  Michigan  Canal  v.  Calhoun. 


The  36th  section  declares  that,  "  In  all  sales  of  canal  lots,  the 
secretary  and  treasurer  of  the  board,  shall  act  as  register  and 
receiver;  and  shall  be  governed  by  the  same  rules  that  now 
govern  registers  and  receivers  in  the  United  States  Land  Of- 
fices in  this  State,  except  as  in  the  act  is  provided."  The  act 
of  Congress  of  the  24th  April,  1820,  section  2d,  provides,  that 
"  If  any  person,  being  the  highest  bidder  at  public  sa^  for  a 
tract  of  land  shall  fail  to  make  payment  therefor,  on  the  day 
on  which  it  was  purchased,  it  shall  be  again  offered  at  public 
sale,  on  the  next  day  of  sale,  and  such  person  shall  not  be  the 
purchaser  of  that  or  any  other  tract  offered  at  such  sale." 

By  the  provisions  of  the  act  referred  to,  creating  the  Canal 
Board,  it  will  be  obvious  that  the  commissioners  were  not  au- 
thorized to  annex  to  the  conditions  of  the  sale,  the  terms  im- 
posed by  the  notice  given.  The  2d  section  of  the  act  of  Con- 
gress, having  been  the  mode  adopted  by  the  36th  section  of 
the  act  quoted,  for  the  government  of  the  sales,  they 
[*523]  were  not  at  liberty  to  impose  *others,  or  substitute 
those  that  would  impose  conditions  of  the  character 
described.  The  refusal  by  the  purchaser  to  pay  for  the  lot  in 
the  manner  provided  by  law,  on  the  day  of  sale,  required 
them  to  put  up  the  lot  again  for  a  re-sale,  and  to  prohibit  such 
purchaser  refusing  to  pay  for  the  lot  previously  purchased, 
from'tteing  a  bidder  for  any  other  lot  on  the  day  of  sale. 

It  will  be  perceived  that  unless  this  rule  was  adopted,  under 
the  provisions  of  the  section  of  the  act  of  Congress  referred 
to,  there  was  no  power  whatever  vested  in  the  commissioners 
to  sell  the  lot  on  a  subsequent  day  without  considering  it  as 
an  unsold  lot ;  and  again  advertising  it,  as  in  the  case  of  the 
original  offering  of  lots  for  sale. 

The  33d  section  of  the  act  creating  the  board,  declaring  that 
the  sale  of  lots  should  be  made  on  the  20th  day  of  June,  and 
not  providing  for  a  continuance  of  the  sales  from  day  to  day, 
would  not  have  authorized  the  sales  from  day  to  day,  unless 
another  portion  of  the  act  of  Congress,  providing  for  the  sales 
of.  the  public  lands,  be  also  adopted,  which  authorizes  the  con- 
tinuance for  two  weeks.  The  acts  of  Congress  relative  to  the 
duties  of  the  registers  and  receivers,  in  regard  to  the  sales 
of  the  public  lands,  having  been  made  applicable  to  the  sales 
by  the  Board  of  Commissioners,  it  was  probably  considered 
unnecessary  to  declare  that  the  sales  might  be  continued  for 
a  specified  length  of  time.  If  this  reasoning  be  correct,  it 
follows  as  a  consequence,  that  by  the  adoption  of  the  pen- 
alty of  forfeiture  of  the  bid  of  the  delinquent  purchaser, 
and  the  prohibition  to  become  a  purchaser  of  any  other  lot 
at  the  sales,  are  the  only  terms  which  the  commissioners 

551 


DECEMBER  TERM,  1838.  523 

Wallace  v.  Jerome. 

could  legally  impose  and  enforce.  They  had  no  discretion  to 
exercise  any  other  powers  than  such  as  are  conferred  by  the 
act;  and  those  adopted  are  not  among  those  granted.  The 
law  has  specially  prescribed  the  extent  and  character  of 
the  consequences  which  should  result  from  a  failure  to  mak'j 
payment  for  the  lot  purchased  ;  and  thus  necessarily  inhibited 
the  substitution  of  others.  The  demurrer  was  therefore  cor- 
rectly sustained. 

The  second,  fourth,  and  fifth  counts  are  radically  defective 
in  not  averring  that  the  sale  and  purchase  of  the  lot  were  at 
a  public  sale,  agreeably  to  the  provisions  of  the  law  pre- 
scribing the  mode  ;  and  that  the  defendant  was  the  highest 
bidder  therefor.  The  counts  only  show  a  private  sale,  and 
that  is  expressly  prohibited  by  law.  As  there  was  no  plea  of 
the  statute  of  frauds,  the  question  whether  the  sale  was  only  a 
parol  one,  and  not,  therefore,  binding,  can  not  arise  in  this 
case. 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


*JoHN  S.  WALLACE,  plaintiff  in  error,  v.  ORIN     [*o24] 
JEROME,  defendant  in  error. 

Error  to  Will. 

ERROR — DISCRETION. — An  application  to  set  aside  a  default  is  addressed 
to  the  sound  discretion  of  the  Court,  and  the  manner  of  the  exercise  of 
that  discretion  can  not  be  assigned  for  error. 

MOTION  TO  SET  ASIDE  DEFAULT. — A  motion  to  set  aside  a  default  does 
not  come  within  the  provisions  of  the  act  of  July,  1837. 

THE  motion  to  set  aside  the  default  in  this  case,  was  made 
and  decided  at  the  September  term,  1838,  of  the  Will  Circuit 
Court,  the  Hon.  John  Pearson  presiding.  The  affidavit  of 
the  plaintiff  in  error,  the  defendant  in  the  Court  below,  stated 
that  when  the  summons  was  served  upon  him,  the  sheriff  in- 
formed him  that  it  was  a  summons  for  him  as  a  witness,  to 
appear  at  the  April  term,  1838  ;  arid  that  he  had  never  been 
summoned  in  this  cause,  and  had  a  full  defense  to  the  action. 

G.  A.  O.  BEAUMONT,  M.  SKINNER,  and  G.  SPKING,  for  the 
plaintiff  in  error. 

CITED  :  Error,  what  can  not  be  assigned  for.  40  111.  175  ;  5  Gil.  324, 
459.  Discretionary  act,  when  reviewed.  41111.  225;  not  inquired  into  on 
appeal,  78  111.  22. 

655 


524  YANDALIA. 


Covell  et  al.  r.  Marks. 


J.  BUTTERFIELD,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  trover  commenced  by  Jerome  against 
Wallace.  At  the  return  term  of  the  summons,  (April  term, 
1838,)  a  default  was  entered  for  want  of  a  plea,  and  at 
the  next  term  a  writ  of  inquiry  was  executed,  and  judgment 
given  for  the  plaintiff.  On  the  day  after  the  judgment  was 
rendered,  the  defendant  below  filed  an  affidavit  made  by  him- 
self, and  moved  the  Court  that  the  judgment  be  opened,  re- 
versed, and  set  aside.  This  motion  was  overruled. 

The  proceedings  in  the  Court  below  are  regular  on  their 
face  ;  and  the  application  to  set  aside  the  judgment  below  was 
addressed  to  the  sound  discretion  of  the  Court.  Where  dis- 
cretion exists,  this  Court  has  frequently  decided  that  error 
cai>  not  be  assigned. 

The  overruling  of  the  motion  does  not  come  within  the 
statute  passed  21st  July,  1837,  (Acts  of  July  1837,  109  ;  Gale's 
Stat.  540,)  authorizing  exceptions  to  be  taken  to  opinions  and 
decisions  of  the  Circuit  Courts,  overruling  motions  in  arrest 
of  judgment,  for  new  trials,  and  for  continuances  of  causes. 
It  is  consequently  unnecessary  to  express  an  opinion  whether 
the  defendant  produced  sufficient  grounds  to  authorize  the 

Circuit  Court  to  have  set  aside  the  judgment. 
[*525]         *The  judgment  below  is  affirmed  with  costs. 

Judgment  affirmed. 


MERRITT  L.  COVELL,  ORTOGRUL  COVELL,  and  JESSE 
W.  FELL,  appellants,  v.  JACOB  MARKS,  appellee, 

Appeal  from  McLean. 

PLEADING — AMENDMENT. — Where  an  amendment  to  a  declarati  on  is  of 
a  matter  of  substance,  it  entitles  the  defendant  to  a  continuance  of  the  cause. 

JUDGMENT  was  rendered  in  this  cause,  in  the  Circuit  Court 
of  McLean  county,  in  the  year  1838,  the  Hon.  Jesse  B. 
Thomas  presiding. 

STEPHEN  A.  DOUGLAS,  for  the  appellants. 

CITED:  Continuance.  1  Gilm.  259;  18  111.  23;  37  111.  272.  Amendment, 
•when  material.  3  Gilm.  231. 

556 


DECEMBEK  TEEM,  1838.  525 

Mitchell  et  al.  v.  State  Bank  qf  Illinois. 
L.  DAVIS  and  F.  FOKMAN,  for  the  appellee. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 

The  plaintiff  in  this  action  declared  upon  a  promissory  note 
for  four  hundred  dollars.  Upon  the  calling  of  the  cause,  the 
plaintiff  asked  and  obtained  leave  to  amend  his  declaration, 
which  he  did  instanter  by  adding  to  the  description  of  the 
note,  the  words  "  with  twelve  per  cent,  interest  from  the  date 
until  paid."  The  defendants  thereupon  moved  the  Court  fora 
continuance  of  the  cause,  which  was  refused,  and  judgment 
rendered  against  the  defendants.  The  refusal  of  the  Court 
to  continue  the  cause,  and  the  rendition  of  the  judgment  are 
assigned  for  error.  The  rule  is,  that  where  the  amendment 
to  the  declaration  is  a  substantive  one,  it  entitles  the  defend- 
ant to  a  continuance.  The  amendment  in  this  case  is  clearly 
of  this  character.  It  made  the  note  a  different  one  from  that 
at  first  declared  on,  by  increasing  the  defendants'  liability  to 
the  extent  of  the  interest  that  might  be  due  on  the  note. 
This  in  effect  made  the  amended  declaration  a  new  one,  which 
the  defendants  could  not  be  called  on  to  answer  without  ten 
days'  notice  preceding  the  commencement  of  the  term  of  the. 
Court. 

The  copy  of  the  note  upon  the  back  of  the  declaration,  was 
no  notice  to  the  defendants  of  the  one  declared  on.  They 
were  different  not  only  in  terms,  but  in  their  legal  effect ;  and 
the  one  copied  could  not  be  given  in  evidence  under  the  dec- 
laration. 

*The  judgment  of  the  Court  below  is  reversed  with  [*526] 
costs,  and  the  cause  remanded. 

Judgment  reversed. 


ICHABOD  MITCHELL  and  GEORGE  MAYBERRY,  appel- 
lants, v.  THE  PRESIDENT  AND  DIRECTORS  OF  THE 
STATE  BANK  OF  ILLINOIS,  appellees. 

Appeal  from  Hamilton. 

BILLS  OP  CREDIT — BILLS  OP  STATE  BANK— EVIDENCE— ADMTSSIBILITY. 
— In  an  action  by  the  old  State  Bank  of  Illinois,  upon  a  promissory  note 
given  in  satisfaction  of  two  judgments  recovered  upon  promissory  notes  ex- 
ecuted to  said  bank  in  consideration  of  bills  of  said  bank  which  had  been 
declared  by  the  Supreme  Court,  to  be  bills  of  credit  emitted  by  the  State,  in 

CITED:  Judgment  can  not  be  attacked  collaterally.    3  Scam.  112. 

557 


526  VAKDAL1A. 


Mitchell  et  al.  v.  State  Bank  of  Illinois. 


contravention  of  the  Constitutor  of  the  U.  S.,  the  defendants  offered  to 
show  the  consideration  of  the  judgments  in  bar  of  the  action:  Held,  that  the 
evidence  was  inadmissible,  and  that  the  validity  of  the  judgments  could  not 
be  impeached  in  such  action. 

JUDGMENT — IMPEACHMKNT  OF. — A  judgment  can  not  be  impeached  in 
an  action  upon  a  note  given  in  satisfaction  of  such  judgment.  A  judgment 
implies  verity  in  itself. 

THIS  was  an  action  originally  instituted  by  the  appellees 
against  the  appellants,  before  a  justice  of  the  peace  of  Ham- 
ilton county,  upon  the  following  note : 

"  On  or  before  the  first  day  of  January  next,  we  or  either 
of  us  promise  to  pay  The  President  and  Directors  of  the 
State  Bank  of  Illinois,  the  sum  of  eighty-six  dollars  and  ten 
cents,  for  value  received,  being  the  amount  due  on  two  judg- 
ments in  favor  of  the  bank  against  N".  Janny  and  others,  on 
Lockwood's  docket,  and  one  judgment  against  Ichabod 
Mitchell  in  the  Circuit  Court  on  a  note  given  by  said  Janny, 
together  with  interest  on  the  above  sum  from  the  24th  of 
August,  1829,  till  paid  :  Provided  if  this  note  shall  be  paid 
punctually,  the  above  interest  and  ten  per  cent,  of  the  princi- 
pal to  be  remitted,  if  both  do  not  exceed  twenty-four  per  cent, 
"on  the  whole. 

Witness  our  hands  and  seals,  this  19th  day  of  September. 
1833. 

GEORGE  MAYBERKY,     [L.S.] 
ICHABOD  MITCHELL,     [L.S.]" 

The  cause  was  removed  by  appeal  to  the  Circuit  Court, 
where  judgment  was  rendered  for  the  appellees  for  $128.24, 
at  the  September  term,  1837,  the  Hon.  Walter  B.  Scates 
presiding.  The  defendants  in  the  Court  below  appealed  to  this 
Court. 

On  the  trial  in  the  Circuit  Court  the  following  bill  of  ex- 
ceptions was  taken: 

"  Be  it  remembered,  that  on  the   trial    of  this  cause,  the 

658 


DECEMBER  TEEM,  1838.  527 

Mitchell  et  al.  v.  State  Bank  of  Illinois. 

duced ;  to  which  opinion  of  the  Court  in  overruling  this  evi- 
dence, the  defendants,  by  their  counsel,  except,  and  pray  this 
their  bill  of  exceptions  may  be  sealed  and  allowed,  etc. 

WALTER  B.  SCATES.     [L.  s.]  " 

HEKKT  EDDY,  for  the  appellants. 

G.  W.  OLNEY,  Attorney  General,  for  the  appellees. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

The  appellants,  being  the  sureties  of  other  persons,  were 
sued  on  certain  notes  which  they  had  signed  with  their  princi- 
pal, against  whom  judgments  had  been  rendered.  To  obtain 
time  for  payment,  and  to  liquidate  these  judgments,  the  plaint- 
iffs gave  other  notes  in  extinguishment  of  the  judgments ;  and 
in  the  Circuit  Court  they  attempted  to  show  that  the  notes  on 
which  the  judgments  had  been  rendered  were  void — having 
been  given  for  notes  of  the  State  Bank,  the  notes  of  the  bank 
being  bills  of  credit  issued  contrary  to  the  provisions  of  the 
Constitution  of  the  United  States.  The  decision  of  the  Cir- 
cuit Court,  in  refusing  to  admit  the  testimony  offered,  was  cor- 
rect. 

The  judgments  were  a  good  and  valid  consideration  for  the 
notes.  The  original  notes  were  extinguished  by  the  judg- 
ments ;  and  the  debt  of  record  created  by  the  judgments  were, 
until  reversed,  a  sufficient  and  legal  consideration.  Until  their 
reversal,  they  were,  of  course,  binding ;  and  the  consideration 
upon  which  they  were  rendered  could  not  be  inquired  into 
collaterally.  It  was  not,  in  this  action,  competent  for  the  Court 
to  admit  evidence  to  impeach  the  judgments,  because  they  im- 
plied verity  in  themselves,  and  could  not  be  contradicted  ;  and 
being  the  consideration  upon  which  the  note  now  sued  was 
founded,  the  decision  of  the  Circuit  Court,  in  excluding  the 
evidence  offered,  was  justified  by  the  well  settled  principles  of 
law  applicable  to  evidence. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

*Note.    See  Linn  v.  The  State  Bank  of  Illinois,  ante  87-95,  and    [*528J 
note  ;  State  Bank  of  Illinois  v.  Brown  et  al.,  ante,  106  ;  Wood  v. 
Hynes,  ante,  103;  Carson  v.  Clark,   ante,  113;  Hall  et  al.  v.  Byrne  etal.. 
ante,  140 ;  Stacker  et  al.  v .  Watson,  ante,  207  ;  Buckmaster  v.  Grundy, 
ante,  310. 

659 


528  YANDALIA. 


Lee  et  al.  v.  Bates. 


HARVEY    LEE    and     LEMUEL     LEE,     appellants,    v. 
MICHAEL  BATES,  appellee. 

Appeal  from  Fayette. 

ACTION  ON  NOTE— PT-EA — WANT  OP  CONSIDERATION. — In  an  action  upon 
a  note  of  band,  the  defendant  pleaded  no  consideration,  and  that  the  note 
was  given  in  consideration  of  a  certain  amount  of  work,  which  the  payee, 
the  plaintiff,  alleged  he  had  performed  for  Waterman  and  Rogers,  contract- 
ors on  the  Cumberland  road,  and  of  an  agreement  by  the  payee  to  deliver  to 
the  defendants  an  order  or  transfer,  to  enable  them  to  draw  from  W.  and 
R.  the  pay  for  the  work — W.  and  R.  being  contractors  upon  the  Cumberland 
road — and  that  the  payee  never  performed  the  work,  nor  delivered  the  order 
or  transfer,  whereby  the  defendants  lost  the  benefit  of  the  same. 

SAME — PRACTICE — CONTINUANCE. — The  defendants  then  moved  for  a 
continuance  of  the  cause,  upon  an  affidavit  of  one  of  the  defendants,  stating 
that  he  believed  that  he  could  prove  by  G.,  who  resided  in  the  county  where 
the  suit  was  commenced,  that  G.  had  in  his  possession  the  contract  for 
work  done  by  the  said  plaintiff  for  W.  and  R.,  and  that  the  plaintiff  had 
failed  to  transfer  it  to  the  defendants.  That  he  expected  to  prove  by  W. 
and  R.,  that  the  plaintiff  wholly  failed  to  perform  his  contract  with  them, 
and  that  they  owed  him  nothing,  and  that  they  wholly  refused  to  pay  to  the 
said  defendants  any  money  on  account  of  the  said  plaintiff  for  the  said  work; 
and  that  the  affiant  knew  of  no  other  witness  by  whom  he  could  prove  the 
same  facts.  That  G.  was  absent  from  the  county  when  the  writ  was  served 
upon  the  defendants  and  had  not  since  returned.  That  Waterman  resided  in 
St.  Louis,  in  the  State  of  Missouri,  and  Rogers  in  Greene  county,  in  the  State 
of  Illinois  ;  and  that  from  the  shortness  of  the  time  between  the  commence- 
ment of  the  suit  and  the  session  of  the  Court,  they  had  not  been  able  either 
to  procure  W.'s  deposition,  or  the  attendance  of  R.  as  a  witness.  Held, 
that  the  affidavit  was  sufficient,  and  the  defendants  were  entitled  to  a  con- 
tinuance. 

THIS  was  an  action  of  assumpsit  commenced  by  the  appel- 
lee against  the  appellants,  in  the  Circuit  Court  of  Fayette 
county,  upon  a  promissory  note.  The  defendants  in  the  Court 
below  pleaded,  first,  that  there  was  no  consideration  for  the 
note  ;  and,  secondly,  that  the  "  note  in  the  said  plaintiff's  dec- 
laration mentioned,  was  made  and  executed  and  delivered 
by  them  to  the  said  plaintiff  in  consideration  of  a  certain 
amount  of  work,  to  wit,  to  the  amount  of  one  hundred  dol- 
lars, which  he,  the  said  plaintiff,  alleged  that  he  had  done  and 
performed  for  one  David  B.  Waterman  and  Jesse  H.  Eogers, 
who  were  contractors  upon  the  National  or  Cumberland  Road  in 
the  State  of  Illinois ;  and  which  contract  for  work  alleged  to  have 
been  done  by  him  as  aforesaid,  and  for  which  said  note  was 
given,  the  said  plaintiff,  in  consideration  that  the  said  defendants 
would  sign  and  deliver  said  note  to  him,  would  transfer  and 

deliver  over  to  the  said  defendants  an  order  or  transfer 
[*529]  of  said  sum,  to  enable  and  authorize  them  to  *draw 

the  money  from  the  said  Waterman  and  Rogers ;  and 

6fiO 


DECEMBER  TEEM,  1838.  529 

Lee  et  al.  r.  Bates. 

the  said  defendants  aver,  that  the  said  plaintiff  did  not  per- 
form any  work  for  said  Rogers  and  Waterman,  nor  did  he 
transfer  and  authorize  the  said  defendants  to  draw  the  money 
on  said  contract  as  aforesaid,  or  any  authority  or  order  what- 
soever to  authorize  them  to  draw  the  amount  of  said  contract 
for  the  work  aforesaid  from  the  said  Waterman  and  Rogers, 
but  wholly  failed  and  refused  so  to  do,  by  reason  of  which  the 
said  defendants  lost  the  benefit  of  the  same  ;  and  the  said  de- 
fendants further  aver,  that  the  consideration  of  said  note,  in 
the  said  decoration  mentioned,  has  wholly  failed,  and  this  they 
are  ready  to  verify,  wherefore,  etc." 

These  pleas  were  traversed  by  the  plaintiff,  and  issue  taken 
thereon. 

The  defendants  then  filed  the  following  affidavit,  and  moved 
the  Court  for  a  continuance  to  the  next  term  of  the  Court : 
"  Lemuel  &  Harvey  Lee.  \ 

ats. 
Michael  Bates.          ) 

Lemuel  Lee,  one  of  the  defendants  in  the  above  cause,  being 
duly  sworn,  deposes  and  fays,  that  William  C.  Gi  eenup,  of  the 
county  of  Fayette,  and  David  B.  Waterman,  of  the  city  of  St. 
Louis,  Missouri,  and  Jesse  Rogers,  of  the  county  of  Greene, 
Illinois,  are  material  witnesses  for  him  in  the  trial  of  the  above 
cause.  He  expects  and  believes  that  he  will  be  able  to  prove 
by  William  C.  Greenup  that  the  contract  for  work  done  by 
the  said  plaintiff  for  Rogers  and  Waterman  was  in  his  posses- 
sion, and  the  said  plaintiff  failed  to  transfer  it  to  the  said  de- 
fendants as  he  had  agreed  to  do  and  for  which  said  note  was 
given  ;  he  also  expects  to  prove  by  said  Waterman  and  Rog- 
ers that  the  said  plaintiff  wholly  failed  to  perform  his  con- 
tract with  them  for  work,  and  that  they  owed  him  nothing, 
and  that  they  refused  wholly  to  pay  to  the  said  defendants  any 
money  on  account  of  the  said  plaintiff,  for  the  said  work  alleged 
to  have  been  done  by  him  for  the  said  Rogers  and  Waterman, 
and  for  which  said  note  was  given. 

This  affiant  further  states,  that  he  knows  of  no  other  witness 
or  witnesses  by  whom  he  can  prove  the  same  facts.  When  the 
writ  was  served  on  this  affiant,  Wm.  C.  Greenup  was  absent 
from  the  county  of  Fayette,  and  has  not  since  returned  ;  and 
Waterman's  testimony,  who  resides  in  St.  Louis,  could  not  be 
taken  before  the  meeting  of  the  Court.  They  also  state  that 
from  the  shortness  of  the  time  they  were  unable  to  procure 
the  attendance  of  the  witness,  Rogers,  to  this  term  of  the 
Court.  He  expects  to  be  able  to  procure  their  testimony  by 
next  Court. 

LEMUEL  LEE. 

VOL.  1-36  661 


529  VANDALIA. 


Lee  et  al.  v.  Bates. 


Sworn  to  and  subscribed  in  open  Court,  Oct.  10,  1838. 

JAS.  W.  BERRY,  Clk." 

[*530]        *The  motion  for  a  continuance  was  overruled,  and 
the  defendants  excepted  to  the  opinion  of  the  Court, 
and   embodied   the   facts  in  a  bill  of  exceptions,  which  was 
signed  and  sealed  by  the  Court. 

The  cause  was  tried  before  the  Hon.  Sidney  Breese  and 
a  jury,  at  the  October  term,  1838.  Verdict  and  judgment 
were  rendered  for  the  plaintiff  in  the  Court  below.  The  de- 
fendant appealed  to  this  Court. 

A.  P.  FIELD,  for  the  appellants. 

L.  DAVIS  and  F.  FORMAN,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

An  application  was  made  to  the  Circuit  Court,  in  this  cause, 
for  a  continuance  to  the  next  term,  founded  on  a  deposition  of 
one  of  the  defendants,  showing  the  absence  of  a  witness  whose 
testimony  appears  to  be  material  on  the  trial  of  the  cause,  re- 
siding in  Missouri ;  and  of  another  residing  in  a  distant  county. 

The  facts  which  the  deposition  discloses,  and  which  it  is 
alleged  the  witness  could  prove,  would  be  material  for  the  de- 
fendant in  his  defense  ;  and  as  the  declaration  was  filed  only 
twelve  days  before  the  sitting  of  the  Court,  it  was  not  within 
the  power  of  the  defendants  to  have  obtained  the  testimony 
of  the  absent  witnesses  under  a  Dedimus,  conformably  to  the 
statute,  in  time  for  a  hearing  of  the  cause — ten  days'  notice  of 
the  intention  to  take  the  testimony  being  required  to  be  given 
to  the  opposite  party.  There  was  consequently  no  laches  on 
the  part  of  the  defendants. 

The  judgment  is  reversed  with  costs,  a  new  trial  granted, 
and  a  venire  de  now  awarded. 

Judgment  reversed. 

Note.    See  Vickers  v.  Hill  et  al.  ante  307,   and  note ;    The  People  ». 
Pearson,  ante  473;  Covell  et  al.  v.  Marks,  ante  525. 
562 


DECEMBEE  TEEM,  1838.  530 

Miller  v.  Bledsoe  et  al. 


ANDREW   MILLER,   plaintiff  in   error,   v.    MOSES    O. 
BLEDSOE  and  B.  F.  TURPIN,  defendants  in  error. 

Error  to  the  Municipal  Court  of  the  City  of  Alton. 

PARTIES — ACTION  BY  ASSIGNOR  OP  PART  OP  PROMISSORY  NOTE. — At  law, 
a  moiety,  or  any  other  portion  of  a  promissory  note,  can  not  be  so  assigned 
as  to  enable  the  assignee  to  bring  an  action  in  his  own  name  for  his  portion 
of  the  note. 

In  order  to  enable  an  indorsee  or  assignee  of  a  note  to  bring  an  action 
in  his  own  name,  the  whole  interest  in  the  note  must  be  assigned  to 
him. 

Where  a  note  was  made  payable  to  B.  and  T.,  and  T.  indorsed  and  as- 
signed his  interest  in  the   note  to  B.,  and  an  action  was  instituted   on  the 
note  in  the  name  of  B.  and  T.,  for  the  use  of  B. :    Held  that  the  action  was 
correctly  brought ;  and  that  B.  and  T.  were  the  legal  holders  of  the  note, 
though  the  interest  of  the  assignee  of  the  moiety  would  be  protected 
in  a  court  of  law  ;  and  that  the  indorsement  of  T.  upon  the  note    [*531] 
could  be  regarded  only  as  a  private  memorandum  between  the 
payees. 

A.  COWLES  and  J.  KRTJM,  for  the  plaintiff  in  error. 

J.  EUSSELL  BULLOCK  and  EDWARD  KEATING,  for  the  defend- 
ants in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  assumpsit  brought  in  the  Court  be- 
low, by  Bledsoe  and  Turpin  against  Miller,  on  a  promissory 
note.  On  the  trial  of  the  cause,  the  plaintiff  below  produced 
and  offered  to  read  a  note  in  evidence  to  the  jury,  in  the  fol- 
lowing words,  to  wit: 

"  LOWER  ALTON,  ILL.,  April  18,  1836. 

Two  years  after  date,  I  promise  to  pay  to  the  order  of  M. 
O.  Bledsoe  and  B.  F.  Turpiu,  two  hundred  and  eighty  dol- 
lars, value  received,  negotiable  and  payable  at  the  Branch  of 
the  Illinois  State  Bank  at  Alton.  ANDREW  MILLER." 

Upon  the  back  of  which  note  there  is  in  writing  the  follow- 
ing indorsement :  > 

"  I  assign  my  interest  in  the  within,  to  M.  O.  Bledsoe,  with- 
out recourse  in  any  event.  5-  F.  TURPIN." 

A  witness  was  sworn  who  testified  that  the  signature  to 
paid  indorsement  was  in  the  handwriting  of  B.  F.  Turpin,  one 
of  the  plaintiffs.  To  the  reading  of  which  note  in  evidence, 
the  defendant  objected,  but  the  Court  overruled  the  objection 
and  admitted  the  note.  Other  testimony  was  offered  by  the 
defendant,  and  rejected,  but  it  is  unnecessary  to  state  it,  as  it 

563 


531  YANDALIA. 


Miller  v.  Bledsoe  et  al. 


only  tended  to  prove  the  fact,  which  was  sufficiently  estab- 
lished, that  Turpin  had  parted  with  his  interest  in  the  note,  to 
Bledsoe. 

It  is 'only  necessary  for  this  Court  to  decide  whether  the 
note  was  admissible  in  evidence.  At  law,  a  moiety,  or  any 
other  portion  of  a  promissory  note,  can  not  be  so  assigned  as 
to  enable  the  assignee  to  bring  an  action  in  his  own  name,  for 
his  portion  of  the  note.  Had  Turpin  assigned  his  half  of  the 
note  to  a  third  person,  that  third  person  could  not  have  united 
with  Bledsoe,  in  bringing  the  action,  for  they  would  have 
to  sue  in  different  capacities,  Bledsoe  as  payee,  and  the  third 
person  as  indorsee.  The  same  result  would  follow,  if  Bledsoe 
had  brought  the  action  in  his  own  name;  he  would  have  had 
to  declare  for  a  moiety  of  the  note  as  payee,  and  for  the  re- 
mainder as  indorsee.  This  would  lead  to  much  confusion  and 
complexity  in  pleading.  In  order,  therefore,  to  enable  an  in- 
dorsee of  a  note  to  bring  an  action  in  his  own  name  as  in- 
dorsee, the  whole  interest  in  the  note  must  be  assigned  to 
him.  The  interests  of  an  assignee  of  part  of  a  note,  would 
doubtless  be  protected  in  a  court  of  law,  but  the  action  must 
be  brought  in  the  name  of  the  payee  or  payees,  who 
[*532]  *  continue  to  be  the  legal  holders  of  the  note  for  the 
purpose  of  collection.  The  indorsement  on  the  note 
can  only  be  regarded  as  a  private  memorandum  between  the 
payees,  and  only  vested  in  Bledsoe  an  equitable  title  to  the 
money  when  collected.  The  Court  consequently  decided  cor- 
rectly in  receiving  the  note  in  evidence,  and  in  rejecting  the 
parol  evidence. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON.    See  Ransom  v.  Jones,  ante  291-2,  and  notes. 

Where  a  note  is  made  payable  to  two  persons,  one  of  them  may  by  his  in- 
dorsement convey  his  interest  in  it  to  the  other,  so  as  to  give  the  latter  a 
right  to  sue  on  it  in  his  own  name  alone.  Bayley  on  Bills,  115,  citing  Sneed 
v.  Mitchell,  1  Hayw.  N.  C.  R.  289. 

A  partnership  may  by  indorsement  transfer  the  title  to  a  bill  or  note  to 
one  partner,  even  where  the  partner  claiming  as  indorsee  of  the  partner- 
ship, was  the  person  who  made  the  indorsement.  Russell  *.  Swan,  16 
Mass.  314;  Kirby  v.  Cogswell,  1  Caines,  505. 

On  a  bill  or  note  payable  to  A.,  for  the  use  of  B.,  the  right  to  transfer  is 
in  A.  Evans  v.  Cramlington,  Carth.  5;  2  Vent.  307;  Skinn.  264. 

On  a  bill  or  note  payable  to  several  persons  not  in  partnership,  the  right 
to  transfer  it  is  in  aft  collectively,  not  in  any  individually.  Carvick  v.  Vick- 
ery,  Dougl.  2d  ed.  653,  n.  134. 

Where  a  note  is  payable  to  two  joint  executors,  one  of  them  can  not  trans- 
fer the  note  by  his  separate  indorsement.  Smith  r.  Whiting,  9  Mass.  334. 
See  also  Bank  of  Chenango  v.  Root,  4  Cowen,  126;  Ballou  v.  Spencer,  4 
Cowen,  163;  Lowell  v.  Reding,  9  Greenl.  85. 

After  the  death  of  one  partner,  the  surviving  partner  may  transfer  by  in- 

561 


DECEMBER  TERM,  1838.  532 

Johnson  v.  Moulton. 

dorsement  a  bill  or  note  payable  to  the  partnership.  Jones  v.  Thorn,  14 
Martin,  463. 

But  after  the  dissolution  of  a  co-partnership,  one  partner  can  not  by  his 
indorsement  in  the  partnership  name,  vest  in  the  indorsee  the  title  to  a 
bill  or  note  payable  to  the  partnership.  Sanford  v .  Mickles,  4  Johns.  '224. 

A  partnership  may  make  a  note  payable  to  one  partner,  and  an  indorse- 
ment by  him  will  vest  a  good  title  in  the  indorsee,  who  may  sue  the  part- 
nership upon  the  note.  Smith  v.  Lusher,  5  Cowen,  688;  Blake  v.  Wheadon, 
2  Hayw.  N.  C.  R.  109.  See  Bayley  on  Bills,  49,  50,  115,  116. 


ABRAHAM  JOHNSON,  appellant,  v.  THOMAS  MOULTON, 

appellee. 

Appeal  from  Warren. 

TRIAI/ — PROVINCE  OF  JURY — WEIGHT  OP  TESTIMONY. — It  is  a  well  set- 
tled rule  of  law,  that  in  trials  by  jury,  the  weight  of  testimony  is  a  question 
to  be  decided  by  the  jury  exclusively.  The  decision,  consequently,  can  not 
be  assigned  for  error. 

Semble,  That  on  an  application  to  a  Circuit  Court  to  set  aside  a  verdict  of 
a  jury  because  it  is  against  the  weight  of  testimony,  the  case  must  be  a  fla- 
grant one  to  justify  the  Court  in  disturbing  the  verdict. 

EXAMINATION  OF  WITNESS. — Where  a  witness  for  the  defendant,  on  the 
trial  of  a  cause,  stated  that  he  carried  a  message  from  the  defendant  to  the 
plaintiff,  and  the  counsel  for  the  plaintiff  thereupon  asked  the  witness 
"What  was  his  reply?"  and  the  defendant  objected  to  the  witness'  answer- 
ing the  question,  and  the  Court  overruled  the  objection:  HeJd,  that  the  de- 
cision of  the  Court  was  correct. 

PUBLIC  LANDS — IMPROVEMENTS — PROMISE  TO  PAY  FOR. — In  order  to  sus- 
tain an  action  to  recover  pay  for  improvements  made  upon  the  public  lands, 
all  that    it  is  necessary    for  the  plaintiff  to  prove  is,    that    the 
*defendant  promised  expressly  to  pay  for  the  improvements.    If  the     [*533J 
price  to  be  paid  be  not  agreed  on,  the  contract  is  binding,  and 
the  value  of  the  improvements  must  be  ascertained  by  proof. 

THIS  cause  was  tried  at  the  October  term,  1836,  of  the  War- 
ren Circuit  Court,  before  the  Hon.  Richard  M.  Young  and  a 
jury.  Verdict  and  judgment  were  rendered  for  the  appellee 
for  $21.65. 

L.  DAVIS  and  F.  FORMAN,  for  the  appellants,  cited  Printed 
Opinions,  79,  117,  294.  (Ante  113,  169,  178.) 

O.  H.  BROWNING,  for  the  appellee,  cited  1  Stark.  Ev.  48;  2 
do.  42-3. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  action  was  originally  commenced  before  a  justice  of 


CITED:    Improvements — Promise  to  pay  for.     16111.63. 

565 


533  VANDALIA. 


Johnson  v.  Moulton. 


the  peace,  by  Moulton  against  Johnson,  and  brought  into 
the  Circuit  Court  of  Warren  county  by  appeal.  The  cause 
was  tried  by  a  jury  in  the  Circuit  Court,  and  a  verdict  and 
judgment  given  in  favor  of  Moulton.  The  errors  assigned  are: 
1st.  The  judgment  in  the  Circuit  Court  was  given  against  the 
weight  of  testimony.  2d.  The  court  erred  in  permitting  the 
conversation  of  the  plaintiff  below  to  be  received  in  evidence. 
And  3d.  The  Court  instructed  the  jury  that  they  must  find 
for  the  plaintiff,  if  they  believed  that  a  contract,  either  express 
or  implied,  was  entered  into  between  the  parties,  in  relation  to 
the  improvements  upon  the  land  referred  to  in.  the  record.  In 
relation  to  the  first  error  assigned,  it  is  a  well  settled  rule  of 
law  in  trials  by  jury,  that  the  weight  of  testimony  is  a  ques- 
tion to  be  decided  by  the  jury  exclusively.  The  decision,  con- 
sequently, can  not  be  assigned  for  error.  Had  there  been  an 
application  to  the  court  below  for  a  new  trial  on  this  ground 
the  case  ought  to  have  been  a  flagrant  one,  to  have  justified 
the  Court  in  disturbing  the  verdict.  In  reference  to  the  sec- 
ond error,  the  bill  of  exceptions  discloses  the  following  state  of 
facts :  Johnson  called  a  witness  and  asked  him  if  he  had  deliv- 
ered a  message  to  Moulton,  in  relation  to  the  controversy  be- 
tween them ;  and  upon  the  question  being  answered  in  the  af- 
firmative by  the  witness,  with  a  statement  of  the  nature  of  the 
communication  sent  by  the  defendant  to  the  plaintiff,  the  latter 
asked  the  witness  "  What  was  his  reply?"  The  answer  to  this 
question  is  the  conversation  referred  to  in  the  assignment. 

When  the  defendant  gave  in  evidence  a  message  from  him- 
self to  the  plaintiff,  having  relation  to  the  merits  of  the  dis- 
pute between  them,  if  the  plaintiff  had  remained  silent,  an  in- 
ference might  have  been  drawn  by  the  jury  that  the  plaintiff 
acquiesced.  The  answer  of  the  plaintiff  was  therefore  rele- 
vant to  rebut  any  such  presumption,  and  was  therefore  cor- 
rectly received  in  evidence  for  this  purpose.  The 
[*534]  third  error  assigned,  does  not  *correctly  state  the 
charge  of  the  judge.  The  charge  was,  that  if  the 
jury  believed  there  was  a  promise  to  pay  for  the  improve- 
ments, although  there  was  no  express  contract  as  to  the  amount 
to  be  paid,  that  the  law  raised  an  implied  agreement  to  pay 
their  worth  or  value.  The  "  Act  to  provide  for  tJie  collection 
of  demands  growing  out  of  contracts  for  sales  of  improve- 
ments on  public  lands"  (R.  L.  420;  Gale's  Stat.  434,) 
passed  February  13,  1831,  makes  all  contracts,  promises  or 
undertakings  for  the  sale,  purchase  or  payment  of  improve- 
ments made  on  the  public  lands,  valid  in  law  or  equity, 
and  they  may  be  sued  for  and  recovered  as  in  other  con- 
tracts. In  order  to  sustain  an  action  under  this  act,  all 

566 


DECEMBEK  TERM,  1838.  534 

McKinney  v.  May. 

that  it  is  necessary  for  the  plaintiff  to  prove  is  that  the  de- 
fendant promised  expressly  to  pay  for  the  improvements.  If 
the  price  to  be  paid  be  not  agreed  on,  the  contract  is  binding 
and  the  value  of  the  improvements  must  be  ascertained  by 
proof.  The  law  in  such  cases  raises  an  implied  assumpsit  to 
pay  the  worth  or  value  of  the  property  sold.  The  charge  of 
the  Court  was  consequently  correct. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

Note.   See  Smith  v.  Shultz,  ante  490-2,  and  note. 


JAMES  McKiNNEY,  appellant,  v.  WILLIAM   L.  MAY, 

appellee. 

Appeal  from  Morgan. 

It  is  error  to  take  judgment  by  default,  where  a  demurrer  is  filed  to  the 
declaration  or  petition. 

M.  MCDONNELL,  for  the  appellant. 
E.  D.  BAKER,  for  the  appellee. 

BROWN,  Justice,  delivered  the  opinion  of  the.  Court: 
This  was  an  action  of  debt  brought  by  Win.  L.  May  against 
James  McKinney,  in  the  Circuit  Court  of  Morgan  county,  by 
petition  and  summons.  Judgment  by  default  was  taken 
against  the  defendant  for  the  amount  claimed  in  the  petition, 
although  a  demurrer  to  the  petition  had  been  filed.  To  re- 
verse this  judgment,  an  appeal  is  brought  to  this  Court.  This 
practice  is  under  a  particular  statute  of  this  State,  which  au- 
thorizes any  person  holding  a  bond  or  note  for  the  direct  pay- 
ment of  property  or  money,  to  put  the  same  in  suit  by  filing 
with  the  clerk  of  any  Circuit  Court  having  jurisdiction  thereof, 
together  with  a  petition,  etc. 

*The  fifth  section  of  the  act  says,  "  The  petition  [*535] 
shall  stand  in  the  place  of  a  declaration ;  the  defendant 
or  defendants  may  appear  and  plead,  and  then  an  issue  may  be 
joined,  as  in  actions  of  debt,  on  such  bond  or  note."  (R.  L.  498 ; 
Gale's  Stat.  538.)  It  seems  from  the  statute  regulating  this 
kind  of  practice,  that  the  petition  is  substituted  for  the  decla. 

CITED:    Final    judgment    pending  demurrer,   erroneous.   4  Scam.   55. 
Judgment  by  default,  plea  on  file.   83  111.  446;  17  111.  399. 

567 


535  YANDALIA. 


Dazey  v.  Ocr  et  al. 


ration.  It  would  be  error  to  take  judgment  by  default,  when 
a  plea  is  put  in  to  the  declaration.  In  this  case  judgment  was 
token  without  iirst  disposing  of  the  demurrer,  fprwnicb  decis- 
ion the  judgment  of  the  Circuit  Court  must  be  reversed  with 
costs,  and  the  cavtse  remanded  for  a  new  trial. 

Judgment  reversed. 

Nott.    See  Manlove  et  al.  v.  Bruner,  ante  390. 


ISHMAEL  DAZEY,  plaintiff  in  error,  v.  GEORGE  ORE  and 
JOHN  H.  FOUBUSH,  defendants  in  error. 

Error  fo  Adams. 

PRACTICE — NOTICE. — A  party  intending  to  move  to  quash  an  execution 
should  give  the  opposite  party  notice  of  his  intended  motion.  Where  an 
execution  was  quashed  without  such  notice,  the  Supreme  Court  reversed  the 
decision  and  remanded  the  cause. 

O.  H.  BROWNING,  for  the  plaintiff  in  error. 

L.  DAVIS  and  F.  FORMAN,  for  the  defendants  in  error. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court: 

Dazey  recovered  a  judgment  at  the  Spring  term,  1837,  of 
the  Adams  Circuit  Court,  against  Orr  and  Forbush,  upon 
which  a  fieri  facias  issued  and  was  placed  in  the  hands  of 
Earl  Pierce,  then  sheriff  of  said  county,  for  collection.  Orr 
and  Forbush  paid  Pierce,  the  sheriff,  $30  on  said  execution, 
which  he  indorsed  upon  the  back  thereof,  without  returning 
the  execution  to, the  clerk's  office  whence  it  had 'issued.  Rob- 
ert R.  Williams,  Esq.,  attorney  for  Dazey,  got  possession  of 
the  execution  with  the  credit  of  $30  indorsed  on  the  back 
thereof,  and  returned  it  to  the  clerk's  office,  and  caused  the 
alias  fieri  facias  in  the  bill  of  exceptions  mentioned,  to  be 
issued. 

At  the  July  term,  1838,  of  the  Adams  Circuit  Court,  Orr 
and  Forbush,  by  their  attorney,  produced  said  alias  fieri  fa- 
cias in  Court,  and  without  having  given  notice  to  Dazey  of 
their  intention  to  make  such  motion,  moved  the  court  to 
quash  and  set  aside  the  same. 

This  motion  the  Court  sustained,  and  rendered  judg- 
ment for  costs  against  Dazey ;  to  reverse  which,  this  appeal  is 

568 


DECEMBEE  TEEM,  1838.  536 

Ayres  et  al.  v.  Lusk  et  al. 

brought.     It  *does  seem  to  us,  that  in  this  case  it     [*536] 
was  necessary   for  the  party  to  have  given   notice  of 
his  intention  to  quash  the  execution,  previous  to  the  making 
of  the  motion. 

The  judgment  of  the  Circuit  Court  is  therefore  reversed 
with  costs,  and  the  cause  remanded. 

Judgment  reversed. 


JOHN  AYRES  ET  AL.,  appellants,  v.  EDWARD  LUSK  and 
MARY  LUSK,  his  wife,  appellees. 

Appeal  from  Morgan. 

PRACTICE — NOTICE — PUBLICATION  OF. — It  is  not  necessary  in  a  suit  in 
chancery  that  there  should  be  an  order  of  publication  before  notice  to  par- 
ties who  are  not  served  with  process  can  be  given  by  advertisement,  in  a 
public  newspaper. 

Where  a  part  of  the  defendants  in  a  chancery  suit  were  non-residents,  and 
affidavit  was  made  of  this  fact  and  filed  in  the  clerk's  office,  and  the  clerk 
published  a  not.ice  for  four  weeks  successively  in  a  public  newspaper  printed 
in  this  State,  of  the  pendency  of  the  suit,  and  requiring  such  defendants  to 
appear  and  answer  the  bill,  or  that  the  same  would  be  taken  as  confessed 
against  them:  Held,  that  the  defendants  were  duly  notified  under  the 
stiitute. 

"W.  A.  MINSHALL  and  C.  WALKEK,  for  the  appellants. 
WM.  THOMAS  and  WM.  BROWN,  for  the  appellees. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  a  hill  filed  in  the  Morgan  Circuit  Court,  on  the 
chancery  side  thereof.  The  only  particular  error  assigned  is, 
that  the  Circuit  Court  should  not  have  tried  the  cause  before 
an  order  of  publication  was  made  against  the  defendants  on 
whom  the  process  was  not  served,  and  who  did  not  appear. 
The  record  states  that  an  affidavit  was  filed,  showing  satisfac- 
torily that  a  part  of  the  defendants  below  were  non-residents, 
and  that  the  clerk  published  a  notice  for  four  weeks  succes- 
sively in  a  public  newspaper  printed  in  this  State,  of  the  pend- 
ency of  the  suit,  and  requiring  such  defendants  to  appear  and 
answer  the  bill,  or  that  the  same  would  be  taken  as  against 
them,  for  confessed. 

The  fifth  section  of  the  "Act  prescribing  the  mode  of  pro- 
ceeding in  Chancery"  (E.  L.  119;  Gale's  Stat.  140,)  expressly 
authorizes  the  practice  pursued  in  this  case. 

The  decision  is  consequently  affirmed. 

Judgment  affirmed. 

569   • 


537  VANDALIA. 


The  People  v.  The  Auditor. 


[*537]  *THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS,  ex 
relatione  BENJAMIN  S.  ENLOE  v.  THE  AUDI- 
TOR OF  PUBLIC  ACCOUNTS. 

Motion  for  a  Writ  of  Mandamus. 

OFFICE — REPEAL  OF  LAW  CREATING. — It  is  competent  for  the  legislature 
to  repeal  a  law  creating  an  office,  before  the  expiration  of  the  term  of  office 
of  the  incumbent;  and  after  such  repeal  the  officer  is  entitled  to  no  further 
compensation,  though  his  term  of  office,  according  to  the  provisions  of  the 
law  under  which  he  was  appointed,  has  not  expired. 

AT  this  term  of  the  Court,  the  relator  filed  the  following 
affidavit,  and  moved  that  a  rule  be  made  upon  the  Auditor  of 
Public  Accounts,  to  show  cause  why  a  writ  of  mandamus 
should  not  issue  to  compel  him  to  issue  his  warrant  on  the 
Treasurer,  for  $1,237.82,  the  balance  claimed  to  be  due  the 
relator  for  his  salary  as  Warden  of  the  Penitentiary. 

"  Benjamin  S.  Enloe,  being  first  duly  sworn,  deposes  and 
says,  that  he  was  duly  elected  by  the  tenth  General  Assembly 
of  the  State  of  Illinois,  and  on  the  tenth  day  of  February, 
1837,  was  commissioned  by  the  Governor  of  said  State,  as 
Warden  of  the  Penitentiary,  and  was  authorized  and  empow- 
ered by  law  to  hold  and  continue  in  the  office  of  Warden  of 
the  Penitentiary  of  said  State,  for  and  during  the  term  of  two 
years,  and  until  his  successor  should  be  appointed  and  quali- 
fied. This  deponent  further  says,  that  having  complied  with 
the  law  in  all  respects,  on  the  6th  day  of  March,  1837,  he  en- 
tered on  the  duties  of  said  office,  and  continued  in  the  dis- 
charge of  the  same,  and  that  as  such  Warden  of  the  Peniten- 
tiary of  the  State  aforesaid,  he  was  entitled  to  the  sum  of 
sixteen  hundred  dollars,  which  was  appropriated  to  him  by 
law,  and  of  which  sum  the  Auditor  paid  to  this  deponent  the 
sum  of  three  hundred  and  sixty-two  dollars  and  eighteen 
cents;  and  there  is  now  due  to  this  deponent,  as  Warden 
aforesaid,  the  sum  of  twelve  hundred  and  thirty-seven  dol>ars 
and  eighty -two  cents.  He  also  deposes  that  he  made  applica- 
tion to  the  Auditor  of  the  said  State,  to  issue  to  him  his  war- 
rant for  the  same,  which  the  Auditor  refused,  and  still  refuses 
to  pay  to  this  deponent  the  same  or  any  part  thereof,  or  to 
issue  his  warrant  therefor.  And  the  deponent  prays  this 
Honorable  Court  to  afford  him  such  redress  as  justice  may  re- 
quire. BEN.  S.  ENLOE." 

CITED:    Right  to  office,  not  vested  one.    70 III.  395;  2  Scam.  145. 
5.0 


DECEMBER  TEEM,  1838.  537 

The  People  i>.  The  Auditor. 

"  State  of  Illinois, 

Fayette  county. 

1,  Allen  McPnail,  an  acting  justice  of  the  peace  for  said 
county,  do  hereby  certify  that  Benjamin  S.  Enloe  appeared 
before  me  and  made  oath  to  the  within  affidavit. 

Given  under  my  hand  and  seal,  this  20th  day  of  December, 
1838.  ALLEN  McPnAiL,  J.  P.,  F.  C." 

*The  rule  was  granted,  and  the  Auditor,  by  the     [*538] 
Attorney  General,  Bled  the  following  answer  : 
"JBenjamin  /S.  JEnloe  \          Rule  to  show  cause  why  a  Writ 
v.    The    Auditor    of  >      of  Mandamus  should  not  issue. 
Public  Accounts.          ) 

The  said  Auditor,  by  the  Attorney  General,  comes  and 
shows  for  cause  why  the  said  writ  of  mandamus  should  not 
issue :  That  in  the  year  of  our  Lord,  1836,  Jacob  C.  Brunei- 
was  appointed  by  the  Governor  of  the  State  of  Illinois  to  sup- 
ply the  vacancy  occasioned  by  the  resignation  of  Stinson  H. 
Anderson,  Warden  of  the  Penitentiary  of  said  State,  and  in 
accordance  with  the  tenor  of  such  appointment,  continued  to 
hold  such  office  until  the  6th  day  of  March,  1837,  at  which 
time  the  said  Benjamin  S.  E^oe  entered  upon  the  duties  of 
said  office ;  that  from  the  first  day  of  January,  in  the  year  of 
our  Lord,  1837,  to  the  6th  day  of  March,  1837,  the  said  Jacob 
C.  Brunei'  was  entitled  to,  and  drew  from  the  Treasury  of  the 
said  State  of  Illinois,  the  sum  of  one  hundred  and  forty -five 
dollars  and  twenty-one  cents,  said  sum  being  a  part  of  the  six- 
teen hundred  dollars  appropriated  by  the  legislature  for  the 
salary  of  the  Warden  of  the  Penitentiary,  for  the  years  1837 
and  1838;  and  which  is  claimed  by  the  applicant  here. 

And  the  said  Auditor,  for  further  cause,  shows  to  the  Court 
here  that  the  said  Enloe  was  a  member  of  the  10th  General 
Assembly  of  the  State  of  Illinois,  at  which  he  was  elected  to 
the  office  of  Warden  of  the  Penitentiary,  and  at  which,  by  the 
terms  of  the  appropriation  before  referred  to,  the  salary  at- 
tached to  the  office  of  Warden  of  the  Penitentiary  was  raised 
from  the  sum  of  $600  per  annum  to  the  sum  of  $800  per 
annum,  and  that  the  said  Enloe  continued  to  sit  as  a  member 
of  the  10th  General  Assembly,  as  aforesaid,  to  the  end  of  the 
session  thereof. 

And  the  said  Auditor  further  shows,  that  on  the  21st  day 
of  July,  in  the  year  1837,  the  legislature  of  the  State  ol 
Illinois  abolished  the  said  office  of  Warden  of  the  Peniten- 
tiary aforesaid ;  which  office  the  said  Benjamin  S.  Enloe  then 
claimed  to  hold.  By  which  act  the  said  Enloe  is  entitled  to 
no  compensation  more  than,  nor  as  much  as,  he  has  received, 
being  the  sum  of  $362.18,  the  salary  attached  to  said  office,  by 

571 


538  YAKDALIA. 


Gillet  et  al.  v.  Stone  et  al. 


the  said  10th  General  Assembly,  from  the  said  6th   day  of 
March,  1837,  to  the  said  21st  day  of  July,  1837. 

GEORGE  W.  OLNEY,  Atty.  General." 
A  demurrer  was  filed  to  the  answer. 

JOHN  REYNOLDS,  J.  SHIELDS,  and  A.  P.  FIELD,  for  the  rela- 
tor,  contended  that, 

An  appointment  to  office  is  a  grant,  and  can  not  be 
[*539]     revoked;  *that  the  appointee  has  a  vested  right.     6 
Cranch,  87 ;  3  Peter's  Cond.  R.  309. 

The  appointment  to  office  is  a  contract.  Trustees  of  Dart- 
mouth College  v.  Woodward,  4  Wheat.  518 ;  4  Peters'  Cond. 
R.  529. 

An  office  is  a  right  to  exercise  an  employment. 

The  auditor  has  no  right  to  set  up  a  constitutional  objection 
to  the  appointment  of  Enloe  to  the  office.  The  Attorney 
General  can  test  this  question  by  Quo  Warranto,  but  in  no 
other  way. 

The  appointing  power  has  no  authority  to  remove.  They 
cited  Laws  of  1831,  103 ;  of  1833,  R.  L.  474-5  (Gale's  Stat. 
516) ;  of  1835,  52  (Gale's  Stat.  520)  ;  of  1836,  238  ;  of  1836-7, 
(Gale's  Stat.  521,)  4 ;  1837,  July,  47  (Gale's  Stat.  521). 

GEORGE  W.  OLNEY,  Attorney  General,   for  the  respondent. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court  ver- 
bally, and  concluded  by  saying,  that  the  motion  for  a  writ  of 
mandamus  must  be  denied,  and  the  rule  discharged. 

Rule  discharged. 


BEZALEEL  GILLET  and  WILLIAM  GORDON,  plaintiffs 
in  error,  v.  CALEB  STONE,  WILLIAM  MANNING  and 
JOHN  B.  GLOVER,  defendants  in  error. 

Error  to  Madison. 

DISCRETIONARY  POWER  OF  COURT. — The  exercise  of  the  power  to  grant 
or  refuse  an  application  to  set  aside  a  default  and  permit  the  defendant  to 
plead,  as  also  the  granting  or  refusing  of  a  motion  for  a  new  hearing,  is  a 
matter  of  sound  legal  discretion;  and  the  Supreme  Court  can  not  interfere 
with  the  exercise  of  that  discretion  by  the  Circuit  Court. 

CITED:  Allowance  of  motion,  discretionary.  26111.300.  Process  issues 
to  foreign  county,  when.  4  Scam.  303.  Sufficiency  of  declaration.  11  111. 
475,  476.  Doctrine  as  to  jurisdiction.  13  111.  446  ;  13  111.  442.  Errors, 
how  to  be  reviewed.  16  111.  527.  Inquest,  rights  of  defendants.  16  111. 
631,  532. 

572 


DECEMBER  TERM,  1838.  589 

Gillet  et  al.  v.  Stona  et  al. 

INSTRUCTIONS. — Instructions  to  a  jury  upon  an  inquest  of  damages  are 
mere  interlocutory  matters,  and  the  Supreme  Court  has  no  right  to  re-exam- 
ine them. 

STATUTE. — The  statute  of  July,  1837,  does  not  extend  to  motions  to  set 
aside  defaults. 

PLEADING — JURISDICTION. — The  averment  at  the  end  of  a  declaration 
containing  several  counts,  in  a  suit  where  process  was  sent  to  a  foreign 
county,  that  the  cause  of  action  accrued  in  the  county  where  the  suit  was 
brought,  and  within  the  jurisdiction  of  the  Court,  and  that  the  plaintiffs 
reside  in  said  county,  is  sufficient  to  give  the  Court  jurisdiction. 

PLEADING. — Several  counts  in  case  can  be  joined  in  one  declaration. 

VERDICT. — Senble,  That  where  the  verdict  of  a  jury  is  fora  greater 
sum  than  the  ad  damnum  laid  in  the  declaration,  the  plaintiff  may  remit 
the  excess,  and  take  judgment  for  the  sum  laid. 

THIS  was  an  action  brought  by  the  defendants  in  error,  in 
the  Madison  Circuit  Court,  against  the  plaintiffs  in  error.     The 
summons  was  directed  to  the  sheriff  of  Morgan  county,  and  by 
him  executed  upon  the  defendants  in  the  Court  below. 
Previous  to  *the  issuing  of  the  summons,  the  attor-     [*540] 
ney  of  the  plaintiffs  in  the  Court  below  filed  an  affi- 
davit of  the  indebtedness  of  the  defendants  to  the  plaintiffs, 
and  "that  the   cause  of   action  accrued  in  Alton,  Madison 
county." 

The  declaration  contained  three  counts  in  case,  for  deceit  in 
the  sale  and  delivery  of  a  quantity  of  pork.  At  the  end  of 
the  declaration  there  was  an  averment  "that  the  cause  of 
action  accrued  at  Alton,  in  Ihe  county  of  Madison,  and  within 
the  jurisdiction  of  this  Court,  and  that  they,  the  said  plaintiffs, 
reside  at  Alton  aforesaid,  in  said  county  of  Madison  afore- 
said." 

The  first  count  averred  that  the  defendants  contracted  and 
endeavored  to  sell  a  large  quantity  of  bulk  pork,  to  wit,  140,- 
000  pounds  at  $4  per  100  pounds,  and  that  defendants  fraudu- 
lently, etc.,  delivered  S6JS14  pounds  as  and  for  140,000  pounds 
—and  that  the  quantity  delivered  was  less  than  140,000 
pounds,  to  wit,  less  by  53,186  pounds. 

The  second  count  averred  that  the  plaintiffs  agreed  to  buy 
from  the  defendants  140,000  pounds  of  bulk  pork  at  $4  per  100 
pounds,  and  that  the  defendants  having  a  knowledge  of  there 
being  a  less  quantity  than  140,000  pounds,  to  wit,  that  there 
was  but  86,814  pounds,  sold  the  last  mentioned  quantity  to  the 
plaintiffs  as  and  for  140,000  pounds,  and  thereby  fraudulently 
deceived  and  defrauded  the  plaintiffs. 

The  third  count  alleges  that  the  plaintiffs  agreed  to  buy  of 
the  defendants  140,000  pounds  of  bulk  pork  at  $4  per  100 
pounds,  to  be  delivered  to  the  plaintiffs,  in  flat  boats,  at  Alton, 
— that  plaintiffs  have  always  been  ready  to  receive  the  same, 
etc.,  and  that  a  reasonable  time  had  elapsed,  etc.,  and  the  pork 

573 


540  YANDALIA. 


Gillet  et  al.  v.  Stone  et  al. 


had  not  been  delivered,  but  that  the  defendants  fraudulently 
intending  to  deceive,  etc.,  offered  and  endeavored  to  deliver  to 
the  plaintiffs,  a  much  less  quantity  than  140,000  pounds,  to  wit, 
80,814  pounds  as  and  for  the  same  quantity  bargained  for. 

The  plaintiffs'  damages  were  laid  at  $2,000. 

At  the  February  term,  1836,  of  the  Madison  Circuit  Court, 
the  Hon.  Sidney  Breese  presiding,  the  default  of  the  defend- 
ants was  entered,  and  a  writ  of  inquiry  awarded.  The  jury 
returned  a  verdict  for  $2,302.44  for  the  plaintiffs. 

The  bills  of  exceptions  state  that  on  the  day  that  judgment 
by  default  was  entered  in  this  cause,  the  defendants,  by  their 
attorney,  moved  the  Court  to  set  aside  the  default  entered  in 
this  cause  upon  the  following  grounds:  first,  "That the  Court 
has  no  jurisdiction  of  the  cause ;  second,  That  the  affidavit  up- 
on which  the  writ  issued  is  not  sufficient  to  authorize  the  issu- 
ing the  same  to  the  county  of  Morgan." 

"  The  Court  overruled  the  motion  to  set  aside  the  default. 
The  defendants'  attorney  then  proposed  to  make  and 
[*541]  present  an  *affidavit  of  merits,  for  the  purpose  of  set- 
ting aside  the  judgment  by  default,  but  the  Court  re- 
fused to  permit  the  defendants  at  this  stage  of  the  proceed- 
ings, the  writ  of  inquiry  being  about  to  be  executed,  to  pre- 
pare an  affidavit  on  which  to  make  a  motion  to  set  aside  the 
default,  the  said  defendants'  counsel  having  had  twenty-four 
hours  in  which  to  make  such  affidavit.  And  that  after  the  tes- 
timony had  been  closed  in  this  cause,  the  Court  instructed  the 
jury,  at  the  instance  of  the  plaintiffs,  that  by  the  judgment  of 
default  in  this  case,  the  defendants  admitted  the  contract  as 
set  out  in  the  declaration,  and  that  the  plaintiffs  had  a  right  to 
recover  for  the  deficiency  in  the  quantity  of  pork  delivered, 
as  stated  in  the  declaration  ;  that  the  plaintiffs  were  not  bound 
to  prove,  upon  the  inquiry  of  damages,  the  deficiency  in  the 
quantity  of  pork,  but  the  extent  of  deficiency  as  to  quantity 
was  admitted  by  permitting  judgment  by  default." 

"  And  that  upon  the  execution  of  the  writ  of  inquiry  in  this 
case  the  plaintiffs  produced  to  the  Court  several  bills  of  ex- 
change made  and  drawn  by  defendants  upon  plaintiffs  for 
money,  and  proved  the  handwriting  of  defendants,  and 
offered  to  read  those  bills  of  exchange  to  the  jury  upon 
the  proof  of  the  handwriting  of  the  defendants,  as 
above  stated ;  defendants  objected  to  the  admission  of  said 
bills  of  exchange  as  evidence,  but  the  Court  overruled  the  ob- 
jection, and  permitted  the  said  bills  of  exchange  to  be  read  as 
evidence  to  the  jury." 

The  defendants  in  the  Court  below  excepted  to  each  of  the 
taid  several  opinions  and  decisions  of  the  Court. 

574 


DECEMBER  TERM,  1838.  541 

Gillet  et  al.  v.  Stone  et  al. 

The  cause  was  continued  to  the  April  term,  1836,  when  the 
plaintiffs  remitted  $302.44  of  the  damages  rendered  by  the 
verdict  of  the  jury,  and  judgment  was  rendered  for  the  plaint- 
iffs for  $2,000. 

The  cause  was  argued  in  writing  by  WILLIAM  THOMAS,  for 
the  plaintiffs  in  error,  who  relied  upon  the  following  points 
and  authorities : 

The  Court  will  vacate  the  assessment  of  damages  when 
there  is  an  evident  mistake  of  the  clerk.  Burr  v.  Reeve,  \ 
Johns.  507. 

If  it  appears  that  injustice  has  been  done  by  the  admission 
of  improper  testimony,  the  Court  will  set  aside  an  inquisition. 
Ward  v.  Haight,  3  Johns.  C.  80. 

Proceedings  after  default  will  be  set  aside  for  irregularity. 
Griswold  v.  Stoughton,  1  Caines,  506 ;  Spencer  v.  Webb,  1 
Caines,  118. 

If  it  appear  that  important  questions  of  law  will  arise  on 
the  execution  of  a  writ  of  inquiry,  it  will  be  executed  before 
a  judge.  Tillotson  v.  Chatham,  2  Johns.  106. 

*To  prove  that  the  Court  may  assess  damages.     2     [*542] 
Saund.  107,  note  2 ;  McCullum  v.  Barker,  3  Johns. 
153. 

Where  the  sheriff  or  jury  mistake  a  point  of  law,  the  Court 
will  set  aside  the  inquisition.  1  Tidd's  Practice,  630 ;  2 
Salkeld,  647;  1  Strange,  425;  Woodford  v.  Eadis,  do.;  2 
Strange,  1259,  Markham  v.  Middleton.  In  this  case  the  in- 
quisition was  set  aside  for  the  erroneous  decision  of  the  sher- 
iff, and  to  prove  his  decision  erroneous  upon  a  question  of  ad- 
journment or  continuance  see  2  Strange,  853,  Coleman  v. 
Mawly.  If  the  sheriff  admits  improper  evidence,  the  Court 
will  set  aside  the  inquisition.  1  Crompton's  Practice,  290,  re- 
ferring to  Barns,  448  ;  10  Petersdorf,  462. 

In  executing  writs  of  inquiry,  the  judge  at  nisi  prius  is 
only  assistant  to  the  sheriff,  and  has  no  judicial  power.  Buller 
on  Trials,  58. 

Where  improper  testimony  has  been  admitted  by  the  sher- 
iff, the  Court  will  set  aside  the  inquisition.  1  Bos.  and  Pul. 
368  ;  1  Paine  and  Duer's  Practice,  637. 

Upon  inquiry  of  damages  all  that  the  defendant  will  be 
allowed  to  dispute  is  the  amount  of  damages.  Saund.  on 
Plead,  and  Ev.  103.  ^ 

Upon  writ  of  inquiry  the  plaintiff  must  prove  the  quantum 
of  damages.  10  Petersdorf,  458. 

An  able  argument  was  filed  on  the  part  of  the  defendants 

W5 


542  YANDALIA. 


Gillet  et  al.  v.  Stone  et  al. 


in  error,  by  GEO.  T.  M.  DAVIS  and  J.  MARTIN   KBUM.     They 
cited  the  following  authorities: 

3  Stark.  Ev.  1772  ;  Paine  and  Duer's  Pract.  635  ;  3  Term  K. 
302  ;  1  Phillip's  Ev.  149  ;  3  Johns.  56  ;  3  Black.  Com.  396  ;  2 
Saund.  586,  307 ;  2  Term  K.  4 ;  7  Mass.  205  ;  K.  L.  145 
(Gale's  Stot.  166). 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

In  this  case  a  judgment  by  default  and  assessment  of  dam- 
ages was  had,  no  plea  being  interposed,  though  the  defendants 
in  the  Circuit  Court  applied  for  leave  to  plead,  and  to  set 
aside  the  default,  which  the  Court  refused.  On  the  inquest, 
the  defendants  took  exceptions  to  the  instructions  of  the  judge 
to  the  jury — the  inquest  being  had  in  the  Court  before  the 
judge.  Subsequently,  and  before  judgment  on  the  inquest,  the 
defendants  moved  to  set  aside  the  inquest,  and  grant  a  new 
trial.  The  Circuit  Court  refused  to  allow  the  motion. 

It  is  now  urged  for  error,  that  the  Circuit  Court  ought  to 
have  set  aside  the  default,  and  permitted  the  defendants  to 
plead.     That  the  instructions  of  the  judge  to  the  jury  of  in- 
quest, on  the  nature  and  extent  of  the  evidence  required,  was 
erroneous  ;  and  that  improper  evidence  was  admitted. 
[*543]         *It  is  also  assigned  for  error  that  there  is  a  misjoin- 
der  of  counts;  and  that  the  Court  had  no  jurisdiction. 

To  the  causes  urged  as  error  it  is  sufficient  to  reply,  that 
the  exercise  of  the  power  to  grant  or  refuse  the  application  to 
set  aside  the  default  and  permit  the  party  to  plead,  as  also 
the  granting  of  a  new  hearing,  was  a  matter  of  sound  legal 
discretion ;  and  this  Court  can  not  interfere  with  that  power. 
So  in  the  case  of  the  instructions  to  the  jury  of  inquest, 
this  Court  has  no  legal  right  to  re-examine  the  instructions, 
these  being  merely  interlocutory  matters.  The  present  stat- 
ute, in  relation  to  granting  new  trials,  does  not  extend  to 
cases  of  the  present  character.  The  exception  to  jurisdiction 
is  not  well  taken,  it  sufficiently  appears  on  the  face  of  the 
pleadings,  being  specially  set  forth;  and  the  counts  are  all 
in  case  and  there  is  no  misjoinder. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

NOTE  BY  SCAMMON.  Jurisdiction.  See  Clark  v.  Harkness,  ante  56  ;  Key 
v.  Collins,  ante  403  ;  Gillet  et  al.  v.  Stone  et  al.,  post. 

Default.  See  Harmison  v.  Clark,  ante  131 ;  Garner  et  al.  v.  Crenshaw,  ante 
143;  Morton  v.  Bailey  et  al.,  213;  Wallace  ».  Jerome,  ante  524. 

576 


DECISIONS 


SUPREME  COURT 


OF  THE 


STATE  OF  ILLINOIS, 


DELIVERED 


JULY  TERM,  1839,  AT  SPRINGFIELD. 

CLARK  HOLLENBACK,  appellant,   v.  SHADRACH  WILL- 
IAMS and  HENRY  LANDER,  appellees. 

Appeal  from  La  Salle. 

ACTION  ON  NOTE — PLEADING. — At  common  law,  in  an  action  by  S.  W. 
and  H.  L.,  on  a  promissory  note  made  payable  to  W.  and  L.,  without  men- 
tioning their  Christian  names,  the  presumption  would  be  that  the  plaintiffs, 
being  holders  of  the  note,  were  the  persons  to  whom  the  promise  was  made, 
until  the  contrary  was  shown. 

Under  the  statute  of  March  2,  1839,  in  a  suit  on  a  promissory  note,  it  is 
not  necessary  for  the  holders  to  show  that  they  are  the  persons  described  in 
the  note  as  payees,  by  their  surnames,  where  the  general  issue  is  pleaded. 

Semble,  That  the  rule  is  the  same,  whether  the  action  was  commenced 
and  plea  filed  before  or  since  the  passage  of  the  act. 

THIS  was  an  action  of  assumpsit  commenced  in  the  La 
Salle  Circuit  Court,  on  the  7th  day  of  March,  1838,  by  the 
appellees  against  the  appellants.  The  declaration  was  filed 
April  5,  1838.  It  was  in  the  usual  form,  upon  the  following 
promissory  note : 

"June  14,  1837.  By  the  1st  of  September  next,  I  promise 
to  pay  Williams  &  Lander,  the  sum  of  two  hundred  and 
forty  dollars,  seven  cents,  it  being  for  value  received  of  them. 
As  witness  my  hand. 

CLARK  HOLLENBACK." 

677 
VOL.  1-37 


544  SPRINGFIELD. 


Hollenback  v.  Williams  et  al. 


At  the  April  term,  1838,  the  defendant  pleaded  the  general 
issue.  The  cause  was  tried  at  the  May  term,  1839,  before 

the  Hon.  Thomas  Ford,  without  the  intervention  of 
[*545]  a  jury.  The  *note  was  the  only  evidence  produced. 

The  defendants  objected  to  the  admission  of  the  note 
in  evidence,  because  the  partnership  of  the  plaintiffs  was  not 
proved,  and  because  the  identity  of  the  plaintiffs  with  the 
persons  described  in  the  note  as  payees  was  not  shown.  The 
Court  overruled  the  objection  and  rendered  judgment  for  the 
plaintiff  for  $219.16.  The  defendant  excepted  to  the  decision 
of  the  Court,  and  tendered  a  bill  of  exceptions,  which  was 
signed  and  sealed. 

J.  M.  STRODE  and  J.  T.  SCAMMON,  for  the  appellant. 
G.  SPRING,  for  the  appellees. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
The  only  question  presented  for  decision  in   this  case  is, 
whether  there  is  a  variance  between  the  note  produced  in  evi- 
dence and  the  one  described  in  the  declaration. 

The  declaration  described  the  note  as  payable  to  the  plaint- 
iffs, who  are  Shadrach  Williams  and  Henry  Lander.  The 
note  produced  in  evidence  is  payable  to  "  Williams  and  Lan- 
der." It  is  contended  that  this  does  not  show  that  the  prom- 
ise is  to  pay  to  the  plaintiffs,  and  that  the  identity  of  the  per- 
sons to  whom  the  payment  is  to  be  made  is  not  proven  by  the 
bare  prod  ct  n  of  the  note;  and  that  it  was  incumbent  on  the 
plaintiffs  to  show,  by  proof,  that  they  are  the  persons  to  whom 
the  note  was  given.  The  statute  of  the  2d  March,  1839, 
(Acts  of  1838-9.  266)  "regulating  evidence  in  certain 
cases, "  provides  "  That  in  trials  of  actions  upon  con- 
tracts express  or  implied,  when  the  action  is  brought  by 
partners,  or  by  joint  payees  or  obligees,  it  shall  not  be 
necessary  for  the  plaintiffs,  in  order  to  maintain  any 
such  action,  to  prove  the  names  of  the  co-partners,  or  the 
Christian  names  of  such  joint  payees  or  obligees ;  but  the 
names  of  such  co-partners,  joint  payees  or  obligees,  shall  be 
presumed  to  be  truly  set  forth  in  the  declaration  or  petition." 
Under  this  provision,  we  think  it  was  not  necessary  for  the 
plaintiffs  to  have  shown  by  proof  that  they  were  the  same 
persons  to  whom  the  note  was  payable,  under  the  names  of 
Williams  and  Lander.  The  proof  of  identity,  in  such  cases,  is 
dispensed  with.  At  common  law  the  presumption  would  be, 
that  being  the  possessors  of  the  note,  they  were  the  owners 

678 


JULY  TEEM,  1839.  545 

Armstrong  v.  Caldwell. 

and  persons  to  whom  the  promise  was  made,  until  the  contra- 
ry was  shown. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

Note.    See  Linn  v.  Buckingham  et  al.,  ante  451.    See,  also,  Acts  of 
1840-1. 


*WILLTAM  E.  ARMSTRONG,  plaintiff  in  error,  v.    [*546] 
WILLIAM  CALDWELL,  defendant  in  error,     / 

Error  to  La  Salle. 

PLEADING. — In  an  action  by  an  indorsee  or  payee  against  the  maker,  up- 
on a  promissory  note,  payable  at  a  specified  time  and  place,  it  is  not  neces- 
sary to  aver  in  the  declaration  or  prove  on  the  trial  a  presentment  of  the 
note  for  payment. 

THIS  was  an  action  of  assumpsit  on  the  following  note  : 

"  Phila.,  Nov.  15, 1834 

Four  months  after  date,  I  promise  to  pay  to  the  order  of 
William  Cook,  one  hundred  and  eighty  dollars,  at  the  Bank 
of  Northumberland,  for  value  received. 

$180.00  WILLIAM  CALDWELL." 

Assignment  on  the  back — "  Pay  William  E.  Armstrong,  or 
order." 

This  cause  was  tried  at  the  April  term,  1838,  of  the  La 
Salle  Circuit  Court,  before  the  Hon.  John  Pearson.  The 
judge  nonsuited  the  plaintiff,  who  excepted  to  the  opinion  of 
the  Court,  and  took  the  following  bill  of  exceptions  : 

"Be  it  remembered  that  on  the  25th  day  of  April,  A.  D. 
1838,  this  cause  was  called  for  trial,  when  the  said  plaintiff 
called  Edward  Cook  as  a  witness,  who  satisfactorily  proved 
the  indorsement  of  the  said  note  in  the  declaration  described, 
and  rested  his  cause;  upon  which  the  defendant,  by  'his  coun- 
sel, moved  the  Court  for  a  nonsuit,  for  that  the  said  plaintiff 
had  not  proved  that  the  said  note  had  ever  been  presented  at 
the  place  mentioned  in  said  note  for  payment;  which  said  mo- 
tion was  resisted  by  plaintiff's  attorney.  But  the  Court  sus- 
tained the  said  motion,  and  ordered  the  said  plaintiff  to  be 
nonsuited,  which  was  accordingly  done;  to  the  sustaining  of 
which  said  motion  by  the  Court,  and  order  for  said  non- 
suit, the  said  plaintiff,  by  his  attorney,  excepts,  and  prays  this, 
his  bill  of  exceptions,  may  be  signed  and  sealed  by  the  Court, 

CITED:  Demand— When  unnecessary.  37  III.  144;  102  111.  259.  See, 
also,  authorities  cited  in  H.  &  St.  J.  K.  Co.  v.  Crane,  102  111.  249,  259. 

579 


546  SPKINGFIELD. 


Gillet  et  al.  t>.  Stone  et  al. 


and  made  a  part  of  the  record  herein,  which  is  accordingly 
done. 

JOHN  PEARSON.     [L.  s.]" 

The  declaration  contained  no  averment  of  the  presentment 
of  the  note  for  payment. 

J.  T.  SCAMMON,  for  the  plaintiff  in  error. 
G.  SPRING,  for  the  defendant  in  error. 

[*547]     *Per  Curiam: 

The  principles  decided  in  the  case  of  Butterfield  v. 
Jfinzie,  (ante  445,)  in  this  court,  at  the  June  term,  1838,  are 
applicable  to  this  case.  There  is  no  doubt  that  in  an  action 
against  the  maker  by  the  payee  or  indorsee  of  a  promissory 
note  payable  at  a  time  and  place  specified  in  the  note,  it  is  not 
necessary  either  to  aver  in  the  declaration,  or  prove  on  the 
trial,  that  a  demand  was  made  in  order  to  maintain  the  action. 

The  judgment  of  the  Court  below  is  reversed,  and  judg- 
ment rendered  in  this  Court  for  the  amount  of  the  note  and  in- 
terest. 

The  clerk  will  compute  the  damages. 

Judgment  reversed,  and  judgment  rendered  in  this  Court. 


BEZALEEL  GILLET  and  WILLIAM  W.  GORDON,  plaint- 
iffs in  error,  v.  CALEB  STONE,  WILLIAM  MANNING 
and  JOHN  B.  GLOVER,  defendants  in  error. 

Error  to  Madison. 

PLEADING — JURISDICTION. — An  averment  in  a  declaration,  where  process 
is  sent  to  a  foreign  county,  that  the  cause  of  action  accrued  in  the  county 
where  the  suit  was  brought,  without  at  the  same  time  averring  that  the 
plaintiffs  reside  in  the  same  county,  is  not  sufficient  to  give  a  Circuit  Court 
jurisdiction. 

WM.  THOMAS,  for  the  plaintiffs  in  error. 
COWLES  and  KRTJM,  for  the  defendants  in  error. 

I.OCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  assumpsit  in  the  Madison  Circuit 
Court,  on  the  common  counts.     The  summons  was  directed  to 
Morgan  county,  where  it  was  served  on  Gillett  and  Gordon, 

M 


JULY  TEKM,  1839.  547 

Evans  v.  Crosier. 

the  defendants  below.  The  declaration  avers  that  the  cause 
of  action  accrued  in  Madison  county,  but  contains  no  averment 
that  Madison  county  is  the  place  of  residence  of  the  plaintiffs. 

Judgment  was  entered  by  default  against  Gillet  and  Gor- 
don, and  the  cause  is  brought  into  this  Court  by  writ  of  error. 

According  to  the  decision  of  this  Court  in  the  case  of  Key 
v.  Collins,  {ante  403,)  the  Circuit  Court  of  Madison  county 
Lad  no  jurisdiction  over  the  persons  of  the  defendants. 

The  judgment  is  therefore  reversed  with  costs. 

Judgment  reversed. 


*JoHN  W.  EVANS,  plaintiff  in  error,  v.  SIMON     [*548] 
CROSIER,  defendant  in  error. 

Error  to  La  Salle. 

SUMMONS  —  WHEN  MAY  ISSUE  TO  ANOTHER  COUNTY.  —  In  order  to  author- 
ize the  Circuit.  Court  to  issue  a  summons  to  another  county,  it  must  appear 
that  the  caube  of  action  accrued  in  the  county  where  the  plaintiff  resides  and 
where  suit  is  brought,  or  that  the  contract  sued  on  was  made  specifically  pay- 
able in  the  county  in  which  the  action  is  commenced. 


.  THOMAS,  for  the  plaintiff  in  error. 
J.  Y.  SCAMMON,  for  the  defendant  in  error. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court  : 
This  was  an  action  of  debt  commenced  in  the  La  Salle  Cir- 
cuit Court  on  a  promissory  note  payable  at  the  bank  at  Galena. 
The  summons  was  directed  to  the  sheriff  of  Morgan  county, 
where  it  was  served  on  Evans,  the  defendant  below.  The 
declaration  contains  no  averment  that  the  plaintiff,  Crosier,  re- 
sides in  the  county  of  La  Salle,  and  that  the  cause  of  action 
arose  in  that  county,  or  that  the  money  was  made  payable 
there.  Judgment  was  entered  by  default,  and  the  cause  is 
brought  into  this  Court  by  writ  of  error. 

This  Court  decided  in  the  case  of  Key  v.  Collins,  (ante  403,) 
that  in  order  to  authorize  the  Circuit  Court  to  issue  a  sum- 
mons to  another  county,  it  must  appear  that  the  cause  of  ac- 
tion accrued  in  the  county  where  the  plaintiff  resides,  or  that 
the  contract  sued  on  was  made  specifically  payable  in  the 
county  in  which  the  action  is  commenced. 

CITED:  Process  to  foreign  county.  4  Scam.  303;  Jurisdiction.  13111442. 
See  also  the  preceding  case. 

581 


548  SPRINGFIELD. 


Whitesides  v.  Lee  et  al. 


Neither  of  these  facts  appearing  from  the  declaration,  the 
judgment  below  is  reversed  with  costs. 

Judgment  reversed. 


MOSES  WHITESIDES,  impleaded  with  John  C.  Smith, 
appellant,  v.  JOHN  LEE,  JESSE  G.  LINDELL,  and 
ELLIOT  LEE,  appellees. 

Appeal  from  Jo  Daviess. 

PLEADING — EVIDENCE. — In  an  action  against  the  makers,  upon  a  prom- 
issory note  executed  in  a  co-partnership  name,  one  of  the  defendants — the 
general  issue  being  pleaded — offered  to  read  in  evidence,  on  the 
[*549]  trial,  a  notice  of  the  dissolution  of  the  *co- partnership,  published 
in  the  Galena  Gazette,  a  public  newspaper,  long  before  the  execution 
of  the  note.  He  afterward  offered  to  prove  by  a  witness  that  long  before 
the  making  of  the  note  in  question  there  was  no  co-partnership  existing  be- 
tween the  defendants,  and  that  the  plaintiffs  had  notice  thereof  before  and 
at  the  time  of  the  making  of  the  promissory  note  declared  on,  which  the 
Court  rejected:  Held,  that  the  evidence  was  admissible. 

Quere,  Whether  this  would  be  the  decision  if  the  suit  had  been  com- 
menced and  the  plea  filed  subsequently  to  the  passage  of  the  act  of  March  2, 
1839.  "regulating  evidence  in  certain  cases." 

THIS  was  an  action  of  asmmpsit  commenced  by  the  appel- 
lees against  the  appellant  and  John  C.  Smith,  in  the  Joe 
Daviess  Circuit  Court,  on  the  26th  day  of  March,  1888.  The 
declaration  was  in  the  usual  form,  on  a  promissory  note.  At 
the  April  term,  1838,  the  appellant  pleaded  the  general  issue. 

The  cause  was  tried  at  the  May  term,  1839,  before  the  Hon. 
Dan  Stone.  Judgment  was  rendered  for  the  appellees,  for 
$3,805.34  damages,  and  costs  of  suit.  The  cause  was  brought 
to  this  Court  by  appeal. 

On  the  trial,  the  following  bill  of  exceptions  was  taken : 

"  Be  it  remembered  that  whereas  this  cause  was  set  on  the 
docket  for  the  first  day  of  the  term,  and  was  called  on  that 
day,  that  afterward,  to  wit,  on  the  second  day  of  the  term, 
and  before  the  cause  was  again  called  for  trial,  the  defendant, 
Whitesides,  by  his  counsel,  moved  the  Court  for  leave  to  file 
an  additional  plea,  to  wit,  a  plea  of  non  est  factum,  denying 
the  execution  of  the  note  sued  on,  under  oath,  which  motion 
was  overruled  by  the  Court,  and  to  the  decision  of  the  Court, 
the  defendant,  by  his  counsel,  excepts. 

On  the  calling  of  the  cause  for  trial,  and  while  the  officers 

CITED:    Partnership — Presumption  of  continuance  of.    18  111.  38. 

582 


JULY  TERM,  1839.  549 

Whitesides  v.  Lee  et  al. 

of  the  Court  were  calling  the  jury,  the  defendant  tiled  the 
proper  affidavit,  and  thereupon,  at  the  same  time,  applied  for 
a  change  of  venue,  which  application  was  denied  bj  the  Court, 
as  being  too  late.  To  which  decision  of  the  Court  the  defend- 
ant by  his  counsel  excepts. 

On  the  trial  the  plaintiffs  offered  to  read  in  evidence  to  the 
Court  and  jury,  a  certain  promissory  note,  in  the  following 
words  and  figures : 

'  ST.  Louis,  April  1,  1837. 
$3,128  88-100. 

One  day  after  date,  we  promise  to  pay  to 
the  order  of  John  Lee  &  Co.,  three  thousand  one  hundred  and 
twenty-eight  88-100  dollars,  for  value  received,  without  defal- 
cation, bearing  interest  of  ten  per  cent,  per  annum,  from  date, 
until  paid.  J.  C.  SMITH,  for 

SMITH  &  WHITESIDES.' 

as  the  note  declared  on,  to  the  reading  of  which  the  defendant 
by  his  counsel  objected,  that  the  note  declared  on  was 
described  *in  the  declaration  as  a  note  made  by  Smith     [*550] 
&  Whitesides,  as  co-partners,  whereas  the  note  offered 
in  evidence  purported  to  be  made  by  John  C.  Smith  for  Smith 
&  Whitesides.     The  objection  of  the  defendant  was  overruled 
by  the  Court,  and  the  note  permitted  to  be  read  in  evidence. 
To  which  decision  of  the  Court,  the  defendant  by  his  counsel 
excepts. 

On  the  trial  the  defendant  offered  to  read  to  the  Court  and 
jury  a  certain  notice  in  the  Galena  Gazette,  a  public  news- 
paper, purporting  to  be  a  notice  of  the  dissolution  of  co-part- 
nership of  the  said  Smith  &  Whitesides,  long  before  the  ex- 
ecution of  the  note  declared  on ;  and  the  plaintiffs  by  their 
counsel  objected  to  such  testimony  being  given,  and  the  Court 
sustained  the  objection,  and  to  the  decision  of  the  Court  the 
defendant  by  his  counsel  excepts. 

On  the  trial  the  defendant  also  offered  to  prove,  by  a  wit- 
ness then  in  Court,  that  at  and  long  before  the  making  of  the 
promissory  note  declared  on,  there  was  no  co-partnership  ex- 
isting between  the  said  John  C.  Smith  and  Moses  Whitesides, 
and  that  the  said  plaintiffs  had  notice  thereof,  before  and  at 
the  time  of  making  of  the  said  promissory  note  declared  on. 
The  said  plaintiffs,  by  their  counsel,  objected  to  such  testimony 
being  given,  and  the  Court  sustained  the  objection  of  the  said 
plaintiffs,  and  ruled  that  the  co-partnership  of  said  defendants 
need  not  be  proved  by  said  plaintiffs.  To  all  which  the  de- 
fendant, by  his  counsel,  excepts. 

583 


550  SPKINGFIELD. 


Whitesides  v.  Lee  et  al. 


And  the  said  defendant  prays  that  this,  his  bill  of  excep- 
tions, may  be  allowed  and  made  a  part  of  the  record. 

DAN  STONE.     [L.S.]  " 

The  several  decisions  of  the  Court  mentioned  in  the  bill  of 
exceptions  were  assigned  for  error. 

S.  A.  DOUGLAS  and  JOHN  D.  URQUHART,  for  the  appellant 
L.  DAVIS  and  F.  FOEMAN,  for  the  appellee. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

Several  grounds  of  error  have  been  taken  in  this  case.  It 
will,  however,  be  unnecessary  to  decide  more  than  two,  which 
relate  to  the  evidence  offered  at  the  trial,  by  the  defendants. 
By  the  bill  of  exceptions,  it  appears  that  the  defendant,  "White- 
sides,  offered  to  read  in  evidence  a  notice  published  in  the 
Galena  Gazette,  purporting  to  be  a  notice  of  a  dissolution  of 
the  co-partnership  of  the  defendants,  long  before  the  making 
of  the  note  declared  on,  and,  also,  to  prove  by  a  witness  that 
long  before  the  making  of  the  note  in  question,  there  was  no 
co-partnership  existing  between  the  defendants,  and  that  the 
plaintiffs  had  notice  thereof  before,  and  at  the  time  of  the 
making  of  the  promissory  note  declared  on,  which 
[*551]  the  Court  refused  to  admit.  This  refusal  is  *now  as- 
signed for  error.  That  the  refusal  to  admit  this  tes- 
timony was  erroneous  there  can  be  no  possible  doubt.  It 
went  directly  to  the  point  in  issue,  and  if  established  would 
have  entitled  the  defendants  to  judgment.  The  notice  tended 
to  prove  the  issue,  though  it  could  be  only  presumptive  evi- 
dence ;  and  a  knowledge  of  the  dissolution  before  the  receipt 
of  the  note  by  plaintiffs  would  be  required  to  be  shown. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded,  with  instructions  to  the  Circuit  Court  to 
award  a  venire  de  now.  The  defendant  recovers  his  costs. 

Judgment  reversed. 

See  Hollenback  v.  Williams  and  Lander,  ante  544. 
584 


JULY  TEEM,  1839.  551 

Hunter  v.  Ladd. 


CHARLES  W.  HUNTER,  plaintiff  in  error,  v.  AMOS  LADD, 
defendant  in  error. 

Error  to  the  Municipal  Court  of  the  City  of  Alton. 

ATTACHMENT  BOND — SEALS — AMENDMENT. — Where  an  attachment  bond 
was  signed  by  the  principal,  Hunter,  and  surety,  but  no  seals  were  affixed 
to  the  bond,  and  the  defendant  moved  to  dismiss  the  suit  for  want  .f  a 
sufficient  bond;  and  thereupon  the  plaintiff  moved  that  Hunter  be  allowed 
to  amend  the  bond  by  affixing1  a  seal,  which  motion  the  Court  overruled  and 
dismissed  the  suit:  Held,  that  the  decision  was  correct,  as  the  motion  to 
amend  did  not  extend  to  both  obligors. 

THE  proceedings  were  had  in  this  cause,  at  the  October 
term,  1838,  of  the  Municipal  Court  of  the  City  of  Alton, 
before  the  Hon.  "William  Martin. 

A.  COWLES  and  J.  M.  KRUM,  for  the  plaintiff  in  error. 
G.    T.  M.    DAVIS,  for  the  defendant  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
The  attachment  bond  in  this  case  was  without  seals  to  the 
names  of  the  principal  and  surety.  The  Court  below  dismissed 
the  cause  for  want  of  seals  to  the  signatures  of  the  obligors  to 
the  bond,  although  the  plaintiff  interposed  an  application  that 
Hunter  be  allowed  to  amend  the  bond  by  attaching  a  seal  or 
scrawl  to  the  instrument  on  file,  which  purported  to  be  the 
attachment  bond.  This  refusal  to  permit  such  amendment,  it 
is  now  contended,  was  erroneous,  and  that  leave  should  have, 
been  given  to  make  the  amendment.  It  will  be  perceived  that 
the  application  is  for  Hunter,  the  plaintiff,  to  make  the  scraw1 
to  his  own  signature  only,  which,  by  our  laws,  is  a  seal. 

It  was  competent  for  Hunter  to  be  allowed  to  attach  the 
seal  to  his  own  signature,  and  so  far  the  application  might 
have  been  granted,  under  our  statute,  admitting  of 
such  amendments  ;  but  *sureiy  the  Court  could  not  [*552] 
confer  a  power  on,  or  permit,  Hunter  to  make  or 
attach  a  seal  to  the  signature  of  the  surety  to  the  bond. 
Such  a  seal  would  not  be  the  seal  of  the  co-obligor.  The 
decision  re  fusing  to  permit  the  amendment  was  not  erro- 
neous, although,  so  far  as  it  regards  Hunter,  it  might  have 
been  granted.  Yet,  if  amended,  it  wouM  not  render  the  bond 
valid,  because  of  the  want  of  a  seal  to  the  signature  of  the 

CITED  :    Amendment  of  bond  without  seal.    20  111.  263;   11  111.  646. 

585 


552  SPKINGF1ELD. 


Russell  et  al.  v.  Hogan  et  al. 


co-obligor.  As  the  application  did  not  extend  to  the  perfec- 
tion of  the  bond  in  relation  to  the  signature  and  seal  of  the 
co-obligor,  the  Municipal  Court  could  not  do  otherwise  than 
dismiss  the  suit. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


ISAAC  RUSSELL,  JOSEPH  DOUGHTY  and  NEWELL  BIRCH, 
impleaded  with  John  Doughty,  plaintiffs  in  error. 
v.  JOHN  HOGAN  and  HENRY  H.  WEST,  defendants  in 
error. 

Error  to  Coles. 

ACTION  EX  CONTRACTU — SEVERAL  DEFENDANTS — JUDGMENT. — Where 
an  action  of  assumpsit  is  commenced  against  several,  only  one  of 
whom  pleads  to  the  action,  and  the  default  of  the  others  is  entered,  it  is 
erroneous  to  take  final  judgment  against  them  until  the  issue  as  to  the  de- 
fendant who  pleads  is  disposed  of. 

In  an  action  ex  contractu  against  several  defendants,  the  judgment  is  a 
unit;  it  must  be  rendered  against  all  or  none.  The  cause  can  not  be  con- 
tinued as  to  one  who  has  pleaded,  and  final  judgment  rendered  against  the 
others. 

THIS  was  an  action  of  assumpsit  upon  a  promissory  note. 
The  proceedings  in  this  cause  were  had  at  the  March  term, 
1839,  of  the  Coles  Circuit  Court,  before  the  Hon.  Justin  Har- 
lan.  After  the  cause  had  been  continued  as  to  John  Doughty, 
judgment  by  default  was  rendered  against  the  other  defend- 
ants, and  the  damages  assessed  by  the  clerk  at  $736.32. 

TJ.  F.  LINDEB,  for  the  plaintiffs  in  error,  cited  1  Saund. 
Plead,  and  Ev.  169,  and  authorities  there  cited ;  1  Chit. 
Plead.  31-4 ;  Story's  Plead.  Ch.  13,  title,  Of  Pleas  by  Sev- 
eral Defendants  j  Rochester  v.  JFratters,  4  Bibb,  444. 

O.  B.  FICKLE,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

The  defendants  in  error  declared  as  plaintiffs  in  the  Circuit 

Court,    against   the  defendants  and   John  Doughty,  as   the 

joint  makers   of  a  promissory   note,  under  the  linn   of  Isaac 

Kussell   &  Co.      John   Doughty  tiled  his   plea   of    non-as- 

CITED  :    4  Scam.  361 ;  28  111.  61. 
19* 


JULY  TEEM,  1839.  552 

Archer  v .  Spillman  et  al. 

sumpsit,  and  an  affidavit  of  the  non-execution  of  the  note  by 
himself,  or  any  person  authorized  for  such  purpose, 
and  that  he  had  never  been  a  *co-partner  of  the  [*553] 
fi  m,  as  charged  in  the  declaration  to  exist.  The 
other  defendants,  on  whom  process  had  been  served,  made 
no  defense,  and  judgment  by  default  was  taken,  an  assess- 
ment of  damages  had,  and  a  final  judgment  renderedagainst 
them,  without  a  trial  of  the  issue  presented  by  the  plea  of 
John  Doughty.  This  is  the  ground  of  error  assigned.  The 
objection  is  well  taken.  Jt  is  certainly  erroneous  to  proceed 
to  final  judgment  against  a  part  of  several  joint  defendants, 
without  a  tinal  disposition  of  the  cause  as  to  the  others.  The 
plaintiffs  should  have  tried  the  issue  made  up  by  the  plea  of 
non-assumpsit,  before  a  rendition  of  final  judgment  against 
the  others.  The  judgment,  in  a  case  like  the  present,  is  a 
unit ;  judgment  must  be  rendered  against  all,  or  none.  The 
plaintiffs  could  not  enter  a  nolle  prosegui  or  discontinuance 
as  to  any  one  or  more  of  the  defendants,  and  proceed  to  final 
judgment  against  the  others.  This  d  octrine  was  laid  down  in 
this  court  in  December  term,  1826,  in  the  case  of  Ladd  and 
Taylor  v.  Edwards.  (Breese,  139.) 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded  for  further  proceedings,  conformably  to  this 
opinion.  The  plaintiffs  in  error  recover  costs. 

Judgment  reversed. 


JAMES  M.  ARCHER,  appellant,  v.  JAMES  H.  SPILLMAN 
and  EDMUND  D.  F.  REED,  appellees. 

Appeal  from  Edgar. 

RECORD— OMISSIONS — INFERENCE. — Where  the  record  of  a  cause  stated 
that  "  the  defendant  filed  his  plea,  and  the  plaintiff  joined  thereto,"  but  the 
plea  and  joinder  were  not  on  file,  and  copies  of  the  same  were  not  given 
in  the  record:  Held,  that  the  inference  was  that  the  issue  was  an  issue  to 
the  country. 

ISSUE  OP  -FACT — JUIIY. — Where  an  issue  of  fact  is  joined  in  an  action,  the 
cause  must  be  tried  by  a  jury,  unless  the  parties  expressly  agree  that  it  shall 
be  tried  by  the  Court ;  and  in  such  case  the  agreement  should  be  stated  on 
the  record. 

Loss  OF  PLEADINGS. — Where  the  pleadings  in  a  cause  are  lost,  the  Court 
-hould  permit  the  parties  to  plead  de  noro. 

THIS  cause  was  heard  at  the  March  term,  1839,  of  the  Ed- 
gar Circuit  Court,  before  the  Hon.  Justin  Harlan. 

CITED:  Record — What  must  appear  in.    85  111.  451. 

687 


553  SPRINGFIELD. 


Archer  v.  Spillman  et  al. 


E.  B.  WEBB,  for  the  appellant. 
O.  B.  FICKUN,  for  the  appellees. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  an  action  of  debt  brought  in  the  Edgar  Circuit 
Court,    by    Spillman   and    Reed,   on   a  sealed  note   against 

Archer. 

[*554]  *The  declaration  is  in  the  usual  form.  It  appears 
from  the  record  that  at  the  March  term,  1839,  of  the 
Circuit  Court,  the  parties  appeared  by  their  attorneys,  and 
the  defendant  filed  his  plea  herein,  and  plaintiifs  joined 
thereto. 

The  record  further  states  that  the  plea  of  the  defendant 
and  joinder  of  the  plaintiffs  are  not  on  file  in  the  clerk's  office, 
and  copies  of  the  plea  and  joinder  are  not  given  in  the  rec- 
ord. It  further  appears  from  the  record,  that  the  Court  con- 
sider and  adjudge  that  the  plaintiffs  recover  of  the  defendant 
their  debt  and  damages  ;  but  does  not  show  in  what  manner 
the  Court  disposed  of  the  issue,  as  no  jury  was  called  to  try 
it ;  and  no  order  is  entered  that  the  parties  agreed  that  the 
issue  should  be  tried  by  the  Court.  Several  errors  have  been 
assigned,  but  it  is  only  necessary  to  notice  the  following,  to 
wit:  The  Court  erred  in  not  calling  a  jury  to  try  the  issue 
joined.  This  was  clearly  erroneous,  although  the  nature  of 
the  issue  is  not  stated  in  the  record,  yet  the  clear  inference  is, 
that  an  issue  of  fact  was  joined  between  the  parties,  which 
could  only  be  tried  by  a  jury.  The  parties  might,  under  the 
statute,  have  authorized  the  Court  to  try  the  issue  ;  but  had  they 
done  so,  it  ought  to  have  appeared  on  the  record.  For  this 
irregularity  in  the  proceedings,  the  judgment  is  reversed  with 
costs  and  the  cause  remanded  for  trial  on  the  issue  joined  be- 
tween the  parties.  To  remedy  the  difficulty  that  may  exist 
in  consequence  of  the  loss  of  the  plea,  this  Court  is  of  opinion 
that  the  defendant  below  should  be  permitted  to  file  a  plea 
de  now. 

Judgment  reversed, 

688 


JULY  TEEM,  1839.  554 

Greer  v.  Wheeler. 


WILLIAM  GREEK,  appellant  v.  HARRISON  WHEELER, 

'appellee. 

Appeal  from  Jasper. 
Infancy  is  not  a  dilatory  plea. 

O.  B.  FICKLIN,  for  the  appellant,  cited  the  following  author- 
ities : 

Chit,  on  Cont.  31,  33,  260 ;  5  Johns.  160 ;  1  Pick.  500 ;  2 
Randolph,  478  ;  10  Johns.  33  ;  1  Campbell,  552-3  ;  8  East, 
330  ;  Chit,  on  Bills,  20  ;  1  Term  R  40  ;  Comyn  on  Cont.  627  ; 
1  Chit.  Plead.  516 ;  2  Kent's  Com.  235 ;  1  Bibb's  K.  519. 

BKOWNE,  Justice,  delivered  the  opinion  of  the  Court : 
This  is  a  suit  originally  instituted  before  a  justice  of  the 
peace  of  Jasper  county,  in  the  name  of  Harrison 
Wheeler  v.  William,  *  Greer,  upon  a  note  of  hand.  [*555] 
Unon  the  trial  in  the  Circuit  Court,  the  counsel  for 
Wheeler  relied  for  his  defense,  upon  the  fact  that  the  note 
sued  upon  was  executed  and  given  during  the  minority  of 
Greer,  which  said  defense  the  court  overruled  on  the  ground 
that  it  was  in  the  nature  of  a  dilatory  plea,  and  should  have 
been  pleaded  before  the  justice  of  the  peace.  The  general 
rule  is,  in  the  case  of  dilatory  pleas,  that  the  party  must  avail 
himself  of  them  at  the  first  opportunity,  or  he  waives  his 
right  to  take  advantage  of  them ;  and  it  has  been  so  ruled  in 
the  case  ol  Conley  v.  Good.  (Breese,  96.)  The  plea  of  infancy 
is  not  a  dilatory  plea,  but  goes  to  the  foundation  of  the  action. 
The  Court  below,  in  overruling  the  plea  of  infancy,  erred; 
for  which  error,  the  judgment  of  the  Circuit  Court  is  re  versed 
with  costs,  and  the  cause  is  remanded  for  trial  de  novo. 

Judgment  reversed. 

CITED  :   Reversal  of  void  judgment.    14  111.  377. 


SPRINGFIELD. 


Goodsell  et  al.  r.  Boynton  et  al. 


LEWIS  B.  GOODSELL  and  GEORGE  L.  CAMPBELL, 
appellants,  v.  RAY  BOYNTON  and  HARRY  HYDE, 
appellees. 

Appeal  from  Cook. 

STATUTES — TAKE  EFFECT  FROM  PASSAGE. — Tt  has  been  decided  by  all 
American  courts,  that  statutes  take  effect  from  their  passage,  where  no  time 
is  fixed;  and  this  is  now  the  settled  rule  of  law.* 

CHANGE  OF  TERM  OF  COURT. — The  spring  term  of  the  Cook  Circuit  Court 
was  changed  from  March  to  April,  by  an  act  of  the  2d  of  March,  and  the 
judge  being  ignorant  of  the  change,  held  the  court  in  March.  Issue  was 
joined  in  a  cause,  and  the  same,  by  agreement  of  parties,  was  submitted  to 
the  court  for  trial.  Judgment  was  rendered  for  the  plaintiffs:  Held,  that 
the  proceedings  were  coram  non  judice,  and  that  the  judgment  was  illegal 
and  void. 

THIS  was  an  action  of  assumpsit  commenced  by  Boynton 
and  Hyde  against  Goodsell  and  Campbell  upon  a  promissory 
note.  The  declaration  was  in  the  usual  form.  The  defend- 
ants pleaded  the  general  issue,  and  the  cause  was  submitted  to 
the  Court  for  trial  at  the  March  term,  1839,  the  Hon.  John 
Pearson  presiding.  Judgment  was  rendered  for  the  plaintiffs 
for  §326.78  and  costs.  The  defendants  appealed  to  this  Court. 

The  spring  term  of  the  Cook  Circuit  Court  was  changed  from 
March  to  April,  by  an  act  of  the  General  Assembly,  approved 
March  2,  1839.  The  Court  commenced  its  session  March  4th. 

J.  YOUNG  SCAMMON,  for  the  appellants. 

G.  SPRING  and  J.  BUTTEKFIELD,  for  the  appellees. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  trespass  on  the  case  brought  in 
[*556]  the  *Cook  Circuit  Court.  The  judgment  in  that 
Court  was  rendered  in  favor  of  the  plaintiffs  below, 
and  is  now  brought  to  this  Court  by  appeal.  The  only  objec- 
tion raised  by  the  appellants  in  this  cause,  is,  that  the  judg- 
ment rendered  in  this  cause  was  rendered  by  a  tribunal  acting 
without  the  authority  of  law.  The  statute  fixing  the  time  and 
place  for  holding  courts,  passed  2d  March,  1839,  changed  the 
term  of  the  Cook  Circuit  Court  from  the  first  Monday  in 

CITED:  Presumption  of  regularity— Rebuttal  of.    19  111.  600. 

^Statutes — When  they  take  effect.  See  constitution  1870,  Art.  4,  Sec. 
113;  Starr  &  C.,  111.  Stat.  p.  115,  and  numerous  authorities  cited.  See  also, 
Garrett  v.  Doe,  ante  335,  note. 

590 


JULY  TEEM,  1839.  556 

Bruner  v.  Ingraham. 

* 

March  to  April.  It  has  been  decided  by  all  American  courts, 
that  statutes  take  effect  from  their  passage,  when  no  time  is 
fixed,  and  this  is  now  the  settled  rule.  (7  Wheat.  104.)  It  was 
so  decided  in  the  Circuit  Court  of  the  United  States  for  the 
district  of  Massachusetts,  in  the  case  of  the  brig  Ann  (Galli- 
son,  62) ;  and  it  can  not  be  admitted  in  this  country  that  a  stat- 
tute  shall  by  any  fiction  or  relation  have  any  effect  before  it 
was  actually  passed.  As  the  law  fixing  the  first  Monday  in 
March  for  the  Cook  Circuit  Court,  was  repealed,  the  proceed- 
ings were  coram  non  judice. 

The  judgment  of  the  Circuit  Court  is  reversed  with  costs, 
and  the  cause  remanded  to  be  tried  over  again. 

Judgment  reversed. 


JACOB  C.  BRUNER,  plaintiff  in   error,   v.    JAMES   M. 
INGRAHAM,  defendant  in  error. 

Error  to  the  Municipal  Court  of  the  City  of  Alton. 

DISCHARGE  OF  BAIL — DISCRETION — PRACTICE. — Where  B.  instituted  a 
suit  against  I.  by  capias,  and  held  the  defendant  to  bail;  and  the  Court,  on 
motion,  discharged  the  bail,  but  rendered  judgment  for  the  plaintiff  for  the 
amount  of  his  demand:  Held,  that  the  plaintiff  could  not  bring  a  writ  of 
error  to  reverse  the  decision  of  the  Court  discharging  the  bail.  Held,  also, 
that  the  defendant  in  error  should  have  demurred  to  the  assignment  of 
error;  yet,  that  notwithstanding  he  had  joined  in  error,  the  Court  would 
not,  by  affirming  the  judgment,  subject  the  defendant  to  the  costs  of  the 
Supreme  Court,  but  would  dismiss  the  writ  of  error. 

A  motion  to  discharge  bail  is  addressed  to  the  sound  discretion  of  the 
Court,  and  its  decision  upon  such  a  motion  can  not  be  assigned  for  error. 

THIS  cause  was  heard  in  the  Court  below,  at  the  April  term, 
1838,  before  the  Hon.  Wm.  Martin. 

G.  T.  M.  DAVIS,  for  the  plaintiff  in  error. 
A.  W.  JONES,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court : 
The  plaintiff  sued   the  defendant  in  the  Municipal  Court  of 
the  City  of  Alton,  and  held  him  to  bail  on  the  ground  of  his 
being  a  non-resident.     On  the  trial  of  the  cause,  the 
Court  discharged  *the  bail  on  motion  of  the  defend-     [*557] 
ant's  counsel,  and  rendered  judgment  for  the  plaintiff 
for  the  full  amount  of  his  demand.      The  plaintiff  is  satisfied 

CITED:  Assignment  of  error.    5  Gilm.  170;  14  111.  364;  2  Gilm.  263. 

601 


557  SPEINGFIELD. 


The  People  v.  Royal. 


with  the  judgment  of  the  Court  upon  the  merits,  but  seeks  to 
reverse  the  decision  upon  the  motion  to  discharge  the  bail. 
It  is  unnecessary  to  inquire  into  the  propriety  of  this  decision, 
as  it  is  one  over  which  this  court  has  no  supervision.  The 
motion  to  discharge  the  bail  was  addressed  to  the  discretion  of 
the  Court.  The  decision,  therefore,  upon  that  motion,  can 
not  be  assigned  for  error.  Some  embarrassment,  however,  is 
produced  in  the  disposition  of  this  case,  in  consequence  of  the 
defendant's  having  joined  the  assignment  of  error,  in  place  of 
demurring  to  it,  as  would  have  been  the  correct  practice. 
We  can  not,  in  justice  to  the  defendant,  who  does  not  come 
voluntarily  into  Court,  affirm  the  judgment,  and  thereby  sub- 
ject him  to  costs.  The  only  course,  therefore,  which  we  can 
adopt  to  avoid  such  a  result,  is  to  dismiss  the  cause,  because 
error  will  not  lie  from  the  decision  complained  of.  It  was  upon 
a  point  collateral  to,  and  in  no  way  growing  out  of,  or  con- 
nected with,  the  merits  of  the  subject-matter  of  the  suit,  that 
the  decision  was  made. 

The  cause  is  dismissed  at  the  costs  of  the  plaintiff. 

Writ  of  error  dismissed. 


THE  PEOPLE  OF  THE  STATE  OF  ILLINOIS,  plaintiffs  in 
err'or,  v.  PEGGY  ROYAL,  defendant  in  error. 

Error  to  Madison. 

CRTHINAL  LAW. — The  State  can  not  prosecute  a  writ  of  error  in  a  crimi- 
nal case. 

JURISDICTION. — A  joinder  in  error  will  not  give  the  Supreme  Court  juris- 
diction in  a  case  where  the  constitution  has  not  conferred  it.a 

CONSTITUTIONAL  LAW. — The  provision  in  Article  8,  §  11,  of  the  Constitu- 
tion of  the  State  of  Illinois,  "That  no  person  shall  for  the  same  offense  be 
twice  put  in  jeopardy  of  his  life  or  limb,"  prohibits  the  State  from  bringing 
a  writ  of  error,  where  a  person  accused  of  a  crime  is  acquitted  in  the  Court 
below. 

THIS  was  originally  a  suit  before  a  justice  of  the  peace  for 
an  assault  and  battery,  and  taken  into  the  Circuit  Court  of 
Madison  county  by  appeal.  The  Circuit  Court,  at  the  Octo- 
ber term,  1832,  the  Hon.  Theophilus  W.  Smith,  presiding,  re- 
versed the  proceedings  before  the  justice,  on  the  ground  that 
the  justice  had  no  jurisdiction,  the  act  under  which  the  case 
was  tried  being  repugnant  to  §  11,  Article  8,  of  the  State  Con- 
stitution. 

*  Jurisdiction — Consent  cannot  give  jurisdiction  of  subject-matter.     See 
Leigh  v .  Mason,  ante  249,  note. 
Gto 


JULY  TEEM,  183?.  557 

Trader  et  al.  v.  McKee. 

JAMES  SEMPLE,  Attorney  General,  for  the  plaintiffs  in  error. 
J.  B.  THOMAS  and  D.  PRICKET,  for   the   defendant  in  error* 

*SMITH,  Justice,  delivered  the  opinion  of  the  Court :     [*558] 

The  only  question  presented  in  this  case,  and  requi- 
site to  be  determined,  is,  whether  a  writ  of  error  can  be  prose- 
cuted by  the  State,  in  a  criminal  case,  where  the  judgment  has 
been  in  favor  of  the  defendant  in  the  Court  below. 

The  case  seems  to  us  to  admit  of  but  little  argument. 

It  is  true  the  defendant  has  joined  in  error  and  thereby  pre- 
sented the  points  made  by  the  errors  assigned,  for  the  consid- 
eration of  the  Court;  but  this  can  not  confer  jurisdiction  on 
this  Court,  in  its  appellate  character,  to  determine  these  ques- 
tions thus  made.  The  Constitution  of  this  State  in  the  llth 
Section  of  the  8th  Article,  has  emphatically  declared,  "  That 
no  person  shall  for  the  same  offense  be  twice  put  in  jeopardy 
of  life  or  limb,"  or  in  other  words,  that  he  shall  not  be 
again  tried  for  the  same  offense  after  an  acquittal.  In  the 
present  case,  it  appears  the  Circuit  Court  reversed  the  judg- 
ment of  the  justice  of  the  peace  and  discharged  the  defendant 
from  custody.  It  is  manifest  that  in  such  a  case  fhis  court  has  no 
jurisdiction  over  the  cause,  and  that  even  a  reversal  of  the  judg- 
ment of  the  Circuit  Court  could  not  be  of  practicable  utility. 
We  can  perceive  no  useful  object  to  be  gained  even  in  such  an 
event.  In  the  case  of  The  People  against  Reynolds,  reported 
in  4th  Hay  ward,  110,  this  point  was  expressly  settled,  and  we 
think  correctly.  We  are  of  opinion  that  the  State  could  not 
prosecute  the  writ  of  error,  and  consequently  that  it  is  com- 
pulsory on  this  Court  to  dismiss  the  writ,  without  a  motion  for 
such  purpose. 

The  writ  of  error  is  dismissed  accordingly. 

Writ  of  error  dismissed. 


MOSES  S.  TRADER  and  TEGAL  TRADER,  appellants,  v. 
MOSES  McKEE,  appellee. 

Appeal  from  Cook. 

JURISDICTION. — The  law  is  well  settled,  that  in  order  to  justify  courts  not 
of  record  in  taking  cognizance  of  a  cause,  their  jurisdiction  must  affirma- 
tively appear. 

JUSTICE  COURT— TRANSCRIPT — EVIDENCE. — In  order  to  entitle  a  tran- 
script of  a  judgment  of  a  justice  of  the  peace  of  another  State  to  be  received  in 

CITED:  Transcript  of  judgment.    27  111.  410. 

VOL.  1-38  593 


558  JSPEINGFIELD. 


Trader  et  al.  v.  McKee. 


evidence  in  this  State,  it  must  be  shown  that  by  the  laws  of  the  State  where 
the  judgment  was  rendered,  the  justice  had  jurisdiction  over  the  subject 
matter  upon  which  he  attempted  to  adjudicate. 

A  transcript  of  a  judgment  of  a  justice  of  the  peace  of  Wayne  county,  in 
Indiana,  purported  to  be  certified  by  his  successor  in  office,  and  the  clerk  of 
the  Circuit  Court  of  Wayne  county  certified  as  to  the  capacity  of  said  suc- 
cessor in  office,  and  the  judge  of  the  sixth  Judicial  Circuit  in  Indiana  certi- 
fied as  to  the  capacity  of  the  said  clerk:  Held,  that  in  the  absence  of 
[*559]    proof  that  the  statute  of  *Indiana  authorized  the  clerk  to  give  such 
certificate,  he  could  not  give  a  certificate,  in  such  a  case,  that  would 
be  evidence  in  a  court  of  justice. 

ON  the  trial  of  this  cause  in  the  Cook  Circuit  Court,  at  the 
March  term,  1838,  before  the  Hon.  John  Pearson,  the  plaintiff 
below,  McKee,  offered  in  evidence  papers  purporting  to  be 
copies  from  a  justice's  docket,  of  the  county  of  Wayne,  in  the 
State  of  Indiana,  of  three  judgments  in  favor  of  McKee,  assignee 
of  Josiah  and  David  Reynolds,  against  said  Traders.  The 
judgments  were  not  certified  by  the  justice  before  whom  they 
were  rendered;  but  one  Thos.  S.  Doughty,  as  justice  of  the 
peace  of  the  county  of  Wayne,  and  State  of  Indiana,  certified 
that  the  said  transcripts  were  true  copies  from  the  docket  of 
William  Dunham,  Esq.,  which  docket  had  legally  come  into 
his  possession,  as  the  successor  of  said  Dunham  in  office.  '  The 
clerk  of  the  Wayne  county  Circuit  Court  certified  as  to  the 
capacity  of  Doughty,  and  the  judge  of  the  sixth  Judicial  Cir- 
cuit in  Indiana  certified  as  to  the  capacity  of  the  said  clerk. 
But  there  was  nothing  to  show  that  Dunham  was  a  justice  of 
the  peace  at  the  time  of  the  rendition  of  said  judgments,  or 
that  he  had  jurisdiction  of  the  person,  or  subject  matter  of  the 
suit.  The  defendants  objected  to  the  admission  of  the  said 
justice's  judgments  in  evidence  ;  the  Court  overruled  the  ob- 
jection, and  admitted  the  same  to  be  read  in  evidence  ;-to  which 
decision  the  said  Traders'  counsel  excepted.  Judgment  was 
rendered  for  the  appellee,  and  the  cause  was  removed  into  this 
Court  by  appeal. 

J.  BUTTERFIELD  and  J.  H.  COLLINS,  for  the  appellants,  cited 
1  Story's  Laws  U.  S.  93,  947 ;  4  Cowen,  527;  5  Wend.  268  ; 
1  Johns.  Cases,  228  ;  1  Caines,  191,  note  a  ;  3  Caines,  152 ;  8 
Cowen,  311 ;  19  Johns.  33,  162;  15  Johns.  140. 

G.  A.  O.  BEAUMONT  and  G.  SPRING,  cited  1  Stark.  Ev.  232. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  originally  an  action  commenced  before  a  justice  of 
the  peace,  and  was  brought  by  appeal  into  the  Circuit  Court  of 
Cook  county.     It  appears  from  the  bill  of  exceptions  taken  in 

594 


JULY  TEEM,  1839.  559 

Trader  et  al.  v.  McKee. 

the  cause,  that  the  action  was  founded  on  several  judgments 
obtained  before  a  justice  of  the  peace  in  the  State  of  Indiana, 
by  McKee,  against  Moses  S.  and  Tegal  Trader.  The  defend- 
ants below  objected  to  the  transcripts  of  the  judgments  ren- 
dered by  the  justice  of  the  peace,  as  evidence  in  the  cause ; 
which  objection  the  Court  overruled,  and  received  the  tran- 
scripts in  evidence,  and  gave  judgment  for  the  plaintiff  below. 
Among  other  errors  relied  on  is  the  following,  to  wit:  That  it 
does  not  appear,  from  the  evidence  offered,  that  the  justice 
before  whom  the  judgments  purport  to  have  been  rendered 
had  any  jurisdiction  over  the  persons  of  the  defendants, 
or  over  the  subject  matter  of  said  actions.  The  *law  [*560] 
is  well  settled,  that  in  courts  not  of  record,  in  order  to 
justify  their  taking  cognizance  of  a  cause,  their  jurisdiction 
must  affirmatively  appear.  In  order  to  have  received  these 
transcripts  in  evidence,  it  was  incumbent  on  the  plaintiff  to 
have  shown,  that  by  the  laws  of  Indiana  the  justice  of  the 
peace  had  jurisdiction  over  the  subject  matter  upon  which  he 
attempted  to  adjudicate.  The  laws  of  Indiana,  giving  juris- 
diction to  justices  of  the  peace,  not  having  been  produced  on 
the  trial  below,  the  reception  of  the  transcripts  in  evidence 
was  illegal.  The  correctness  of  the  mode  of  certifying  these 
transcripts  by  the  clerk  of  the  Circuit  Court,  was  also  ques- 
tioned on  the  argument.  ISTo  statute  of  Indiana  was  shown, 
authorizing  the  clerk  of  the  Circuit  Court  to  give  certificates 
in  relation  to  proceedings  before  justices ;  and  in  the  absence 
of  such  statutory  authority,  the  clerk  of  the  Circuit  Court  could 
not  give  a  certificate  that  would  be  evidence  in  a  court  of  justice. 
The  judgment  below  is  reversed  with  costs. 

Judgment  reversed. 

NOTE  BY  ScAMirON.  From  the  numerous  conflicting  decisions  of  the 
courts  of  the  several  States,  it  is  extremely  difficult  to  determine  the  mode 
of  authenticating  judgments  of  justices  of  the  peace,  or  proving  them  in  evi- 
dence, where  actions  are  brought  upon  them  in  a  different  State  from  that 
in  which  they  were  rendered.  The  force  and  effect  of  these  judgments, 
when  proved,  has  also  been  a  subject  of  much  contradictory  adjudication. 
In  New  Hampshire,  it  is  held  that  they  can  not  be  authenticated  under  the 
act  of  Congress,  and  they  are  therefore  regarded  as  foreign  judgments,  leav- 
ing the  whole  matter  open  to  re-investigation.  Robinson  v.  Prescott,  4  N. 
H.  Rep.  450;  Mahurin  r.  Bickford,  6  N.  H.  Rep.  567.  The  same  doctrine 
prevails  in  Massachusetts,  New  York,  and  Ohio.  Warren  v.  Flagg,  2  Pick. 
448;  Silver  Lake  Bank  r.  Harding,  5  Hammond.  545-6;  1  Wright,  127,  430; 
Thomas  v.  Robinson,  3  Wend.  263,  269;  Sheldon  ».  Hopkins,  7  Wend. 
435. 

In  Connecticut  and  Vermont,  a  different  rule  seems  to  prevail.  Bissell  v. 
Edwards,  5  Day,  363;  Starkweather  v.  Loomis,  2  Vermt,  R.  573-4.  In 
Indiana,  the  question  seems  not  to  have  been  fully  settled.  Cole  v.  Driskell, 
note,  1  Blackf.  16;  Collins  r.  Modisett,  1  Blackf.  60;  Cone  v.  Colton,  2 
Blackf.  84,  and  note;  Holtr.  Alloway,  2  Blackf.  Ill,  and  note. 

Foreign  judgments  are  proved:  1.  By  an  exemplification  under  the 
Great  Seal.  2.  By  a  copy  proved  to  be  a  true  copy.  3.  By  the  certificate 

695 


560  SPRINGFIELD. 


Trader  et  al.  v.  McKee. 


of  an  officer  authorized  by  law,  which  certificate  must  itself  be  properly 
authenticated.  2  Cranch,  187,  238;  6  N.  H.  Rep.  567,  570;  2  Caines,  155  et 
seq.  Other  modes  of  authentication,  inferior  in  their  character,  will  be  al- 
lowed, if  these  be  beyond  the  reach  of  a  party.  2  Munf.  53;  3  Call.  446;  3 
Wash.  C.  C.  R.  201-3. 

In  New  Hampshire,  where  a  copy  of  a  justice's  judgment  rendered  in 
V  ermont  was  sought  to  be  introduced  in  evidence,  certified  by  the  county 
c  *erk,  it  was  held  that  it  could  not  be  admitted;  but  if  it  had  been  shown 
that  by  the  laws  of  Vermont  the  records  of  the  justice  had  been  deposited 
in  the  office  of  the  county  clerk,  and  that  he  was  the  proper  officer  to  certify 
the  same,  perhaps  it  would  have  been  sufficient.  6  N.  H.  567-70. 

Where  the  machinery  »of  a  court  is  resorted  to  for  the  purpose  of  authenti- 
cating its  record,  if  such  court  have  no  seal  by  which  the  copy  can  be  clothed 
with  an  exemplification,  that  fact  should  be  proved,  or  the  copy  can  not  bft 
admitted.  Talcott  v.  The  Delaware  Ins.  Co..  2  Wash.  C.  C.  R.  449.  See  7 
Oowen,  434;  2  Wend.  411;  5  Wend.  375,  387,  391;  8  Mass.  273. 

In  Pennsylvania  it  has  been  decided  that  if  a  court  of  another  State, 
whose  doings  are  sought  to  be  proved,  is  so  constituted  that  it  can  not  com- 
ply with  the  requisitions  of  the  act  of  Congress,  for  want  of  a  clerk,  its  pro- 
ceedings may  be  proved  as  if  such  court  were  strictly  a  foreign  court;  and 
accordingly  a  proceeding  of  justices  of  the  peace  of  New  Jersey,  condemning 
a  vessel,  etc.,  for  gathering  clams  and  oysters  in  contravention  of  a 
[*561]  statute  of  New  Jersey,  was  proved  by  the  *procluction  of  a  copy  of 
the  original  record,  signed  by  the  justices,  and  by  proving  by  a  wit- 
ness its  identity  with  the  original,  and  the  signatures  of  the  justices,  and 
that  they  were  at  the  time  justices  of  the  peace,  and  that  the  court  had  no 
seal.  Kean  v.  Rice,  12  Serg.  &  Rawle,  203,  4-8. 

In  Kentucky  the  record  of  a  Territorial  court  not  provable  under  the  act 
of  Congress,  was  held  to  be  sufficiently  authenticated  by  the  certificate  of 
the  clerk  under  the  seal  of  the  court,  and  the  attestation  of  the  Governor 
under  the  seal  of  the  Territory.  Haggin  v.  Squires,  2  Bibb,  334-5.  It  has 
also  been  held  in  that  State  that  a  judgment  of  a  justice  of  the  peace  of 
another  State,  may  be  proved  under  the  act  of  Congress.  Scott  v.  Cleave- 
land,  5  Monroe,  62. 

In  Connecticut  and  Vermont,  it  seems  that  where  a  justice  of  the  peace  has 
no  clerk,  he  may  certify  that  he  is  the  presiding  magistrate  and  clerk  of  the 
court,  etc.  Bissell  v.  Edwards,  5  Day.  363;  Starkweather  v.  Loomis,  2 
Vermt,  R.  573-4;  Blodget  v.  Jordan,  6  Vermt.  R.  580. 

In  Ohio  the  most  usual  mode  of  proving  a  judgment  of  a  justice  of  the 
peace  of  another  State,  is  by  a  transcript  certified  by  the  justice,  and  the 
certificate  of  the  clerk  of  the  county  where  the  judgment  was  rendered. 
-Silver  Lake  Bank  v.  Harding,  5  Hammond,  546;  but  a  transcript  certified  by 
the  justice,  without  the  certificate  of  the  county  clerk,  is  not  sufficient, 
though  accompanied  by  a  deposition  of  the  magistrate  that  he  was  such 
justice,  and  that  he  rendered  the  judgment  on  the  day  of  the  date  thereof, 
and  that  he  had  no  clerk  and  no  seal,  but  acted  as  his  own  clerk  ;  yet  it 
seems  an  examined  copy  is  sufficient.  1  Wright,  430.  In  this  case  the 
deposition  of  the  justice  did  not  state  that  the  transcript  was  an  examined 
copy. 

The  transcript  of  a  judgment  of  a  justice  in  another  State,  certified  by 
him  and  attested  by  the  prothonotary.  is  a  competent  authentication.  Kuhn 
r.  Miller's  Admrs.,  1  Wright,  127.  "The  presiding  judge  of  a  Court  of  Com- 
mon Pleas  has  no  authority  to  attest  a  justice's  judgment.  Idem. 

The  force  and  effect  to  be  given  to  the  judgment  of  a  justice  of  the  peace 
of  another  State,  is  also  held  differently  in  different  States. 

In  Ohio  the  doctrine  seems  to  be  settled  that  where  the  judgment  of  a  jus- 
tice of  the  peace  is  duly  proved,  it  is  entitled  to  as  full  faith  and  credit  as 
any  judgment  of  a  court,  authenticated  under  the  act  of  Congress,  and  not 
subject  to  re-examination.  See  the  authorities  cited  from  Hammond  and 
Wright's  Reports,  before  referred  to.  The  same  doctrine  seems  to  be  held 
MB 


JULY  TEEM,  1839.  561 

Russell  r.  Hugunin  et  al. 

in  New  York,  with  this  qualification,  that  before  the  transcript  of  the  jus- 
tice can  be  admitted  in  evidence  the  statute  of  the  State  where  the  judgment 
was  rendered,  conferring  jurisdiction,  must  be  shown.  Thomas  v.  Robinson, 
3  Wend.  267;  Sheldon  v.  Hopkins,  7  Wend.  435. 

In  New  Hampshire  and  Massachusetts  these  judgments  seem  to  be  treated 
in  all  respects  as  foreign  judgments,  and  consequently  subject  to  re-investi- 
gation. Betts  ».  Bailey,  12  Pick.  572,  581;  6  N.  H.  R.  569. 

In  Kentucky,  where  the  judgment  or  decree  of  a  sister  State  is  produced, 
the  court  will  presume  the  tribunal  rendering  it  possessed  competent  juris- 
diction and  authority,  and  that  the  act  done  in  pursuance  of  it  binds  and 
concludes  the  parties.  To  impair  its  full  force  and  credit  the  onus  lies 
upon  the  party  who  resists  it.  5  Littell,  349-50.  Is  not  this  the  reasonable 
doctrine? 

In  Curtiss  v.  Gibbs,  1  Pennington,  399,  it  was  held  that  the  Court  would 
take  judicial  notice  of  the  constitution,  if  not  of  the  laws  of  a  State. 
See  3  Phillipps'  Ev. ,  Cowen  and  Hill's  Notes,  902,  and  authorities  there  cited. 

In  respect  to  courts  of  limited  and  special  jurisdiction,  nothing  is  pre- 
sumed in  their  favor  as  to  jurisdiction;  and  the  party  seeking  to  avail  him- 
self of  their  judgments,  must  show  affirmatively  that  they  had  jurisdiction. 
Idem,  906;  Mills  v.  Martin,  19  Johns.  33;  9  Mod.  95;  2  Wilson,  16;  Peacock 
v.  Bell,  1  Saund.  73-4;  Kempe's  Lessee  v.  Kennedy,  5 Cranch,  173;  1  Peters' 
C.  C.  R.  80;  Wheeler  t>.  Raymond,  8  Cowen,  811;  McFadinr.  Gill,  1  Bla/ckf. 
309;  Bowers  v.  Green,  ante  42. 

In  New  York,  it  has  been  held  that  where  an  action  is  brought  on  a  jus- 
tice's judgment  of  another  State,  it  is  necessary  to  produce  and  prove  the 
statute  creating  the  justice's  court,  to  see  whether  he  had  jurisdiction. 
Thomas  v.  Robinson,  3  Wend.  267;  Sheldon  v.  Hopkins,  7  Wend.  435. 

In  Indiana,  where  an  action  was  brought  upon  a  judgment  rendered  in 
Ohio,  upon  the  return  of  two  writs  of  scire facias  "  not  found1'  it  was  held 
that  the  return  of  two  inkils  would  not.  at  common  law,  authorize 
a  judgment;  and  if  there  *was  a  statute  in  Ohio  authorizing  a  judg-    [*5621 
ment  upon  such  a  return,  it.  must  be  shown  by  the  party  setting  up 
the  judgment.     Cone  v.  Cplton,  2  Blackf .  82,  and  note. " 

The  authorities  upon  this  subject  are  collected  in  3  Phillipps'  Ev.,  Cowen 
and  Hill's  Notes,  898-907,  1121,  1150,  a  work  of  much  learning  but  of  little 
perspicuity  of  arrangement.  See  also  4  Cowen,  note,  526-7 ;  1  Starkie, 
Nicklin  &  Johnson's  Ed.  of  1837,  190,  and  authorities  there  cited;  Mills  v. 
Duryee,  7  Cranch,  481 ;  2  Peters'  Cond.  R.  578,  where  the  Court  say  that 
the  common  law  gives  to  judgments  of  the  State  courts  the  effect  of  prima 
facie  evidence. 


JOHN  B.  F.  RUSSELL,  plaintiff  in  error,  v.  DANIEL 
HUGUNIN  and  HIRAM  PEARSONS,  defendants  in 
error. 

Error  to  the  Municipal  Court  of  the  City  of  Chicago. 

JUDGMENT — SATISFACTION — SETTING  ASIDE  EXECUTION  AND  SALE. — 
The  Court  from  which  an  execution  issues,  after  the  satisfaction  of  a  judg- 
ment, should,  on  motion,  set  aside  the  execution  and  sale  under  it. 

SAME —  WHAT  CONSTITUTES  SATISFACTION. — Where  a  judgment  was  re- 
covered by  H.  against  R.  and  P.,  on  a  note,  and  H.  gave  an  order  to  B.,  on 

CITED:  Satisfaction  of  judgment.  1  Gilm.  488;  53  111.  60.  When  execu- 
tion set  aside.  59  III.  239.  Abuse  of  process.  17  111.  115. 

597 


562  SPRINGFIELD. 


Russell  v.  Hugunin  et  al. 


H.'s  attorneys,  for  the  proceeds  of  the  note  when  collected,  and  P.  after- 
ward arranged  the  matter  by  depositing  the  amount  of  the  judgment  with 
B.,  and  P.  brought  a  memorandum  to  that  effect  from  B.  to  one  of  H.'s 
attorneys,  who  was  also  the  general  attorney  of  B.,  and  P.  stated  to  the  at- 
torney that  he  did  not  wish  the  judgment  satisfied,  but  wished  to  use  the 
judgment  so  as  to  protect  himself,  as  the  judgment  was  a  lien  on  R.'s  real 
estate,  to  which  the  attorney  assented,  and  directed  execution  to  issue,  which 
was  issued,  and  the  property  of  R.  sold  under  it,  by  the  sheriff,  who  received 
his  instructions  from  P.,  who  purchased  the  property;  and  after  the  sale  the 
sheriff  paid  over  to  the  attorney  P.'s  check  on  B.  for  the  amount  of  the 
judgment,  and  the  attorney  receipted  the  execution,  and  paid  the  check  to 
B.,  which  was  credited  to  H.  on  the  books  of  B. :  Held,  that  the  judgment 
was  satisfied  by  the  arrangement  made  with  B.  before  the  sale,  it  appearing 
tint  B.  so  understood  it;  and  it  being  proved  that  P.  had  declared  that  he 
had  paid  it,  and  represented  to  a  person  of  whom  he  obtained  a  loan  of 
money  on  mortgage,  that  the  judgment  was  satisfied.  Held,  also,  that  it 
was  competent  for  H.  or  P.  to  have  shown  that  the  payment  to  B.  was  not  in 
extinguishment  of  the  judgment. 

DANIEL  HUGUNIN  recovered  a  judgment  in  the  Municipal 
Court  of  the  City  of  Chicago,  against  John  B.  F.  Russell  and 
Hiram  Pearsons,  who  were  impleaded  with  J.  M  Faulk- 
ner, upon  a  promissory  note  made  by  Faulkner,  as  principal, 
and  Russell  and  Pearsons  as  sureties ;  and  being  indebted  to 
the  Chicago  branch  of  the  State  Bank  of  Illinois,  gave 
the  cashier  of  said  branch  an  order  on  Morris  &  Scam- 
mon,  his  attorneys,  for  the  proceeds  of  the  note  when  col- 
lected. Pearsons  deposited  in  said  branch  the  amount  of  the 
judgment,  and  brought  to  Scammon  one  of  Hugunin's  attor- 
neys, a  memorandum  from  the  cashier,  that  he  had  made_  a 
special  deposit  of  that  amount,  or  something  to  that  effect, 
and  stated  to  him  that  he  did  not  wish  the  judgment  satisfied, 
but  wished  to  use  the  judgment  in  order  to  protect  himself,  as 
the  judgment  was  a  lien  on  his  co-defendant's  real  estate. 

Scammon  assented,  and  directed  an  alias  writ  of 
[*563]  execution  to  *issue,  but  took  no  other  concern  in  the 
matter.  After  the  sale  of  Russell's  lands  upon  the 
alias  execution,  the  deputy  sheriff  brought  to  Scammon  the 
check  of  Pearsons  for  the  amount  of  the  judgment  which  he 
received,  and  receipted  the  execution  as  the  attorney  of  Hu- 

gmin,  and  paid  the  check  over  to  the  cashier  of  the  Chicago 
ranch  Bank,  who  credited  Hugunin  with  the  amount. 
Russell,  having  given  notice  to  Hugunin  and  Pearsons  of 
his  intentions  so  to  do,  made  a  motion  in  the  Municipal  Court 
of  the  City  of  Chicago,  at  the  April   term,    1838,   the  Hon. 
Thomas  Ford  presiding,  to  quash  the  execution  and  set  aside 
the  sale  under  it.     The  motion  was  resisted  ;  and  on  the  hear- 
ing, numerous  affidavits  were  read,  in  relation  to  the  declara- 
tions of  Pearsons  at  the  time  he  made  the  arrangement  with 
the  bank  and  subsequently. 

598 


JULY  TEEM,  1839.  563 

Russell  v.  Hugunin  et  al. 

The  cashier  of  the  bank  testified  that  the  amount  arranged 
with  him  by  Pearsons  was  included,  at  the  time  of  the  ar- 
rangement, in  a  note  and  mortgage  executed  by  Pearsons  to 
the  bank,  to  secure  his  indebtedness  to  the  same,  and  that  he 
understood  the  arrangement  to  be  a  payment  of  the  judgment. 
Much  other  testimony  was  introduced,  the  substance  of  the 
material  parts  of  which  is  stated  in  the  opinion  of  the  Court 

JESSE  B.  THOMAS,  for  the  plaintiff  in  error. 
GILES  SPRING,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court: 
The  plaintiff  in  error  prosecuted  a  motion  to  set  aside  an 
alias  writ  of  fieri  facias  and  the  sale  under  the  same,  of  cer- 
tain real  estate  of  the  plaintiff  in  error,  and  to  compel  the 
plaintiff  in  the  original  action  to  enter  satisfaction  of  record, 
on  the  ground  that  the  judgment  had  been  fully  paid  and  sat- 
isfied by  Pearsons,  who  was  a  co-defendant  with  Russell,  be- 
fore the  suing  out  of  the  alias  writ  of  fieri  facias,  and  before 
sale  had  under  the  same.  The  Municipal  Court  overruled  and 
dismissed  the  motion,  to  which  opinion  and  order  of  the  Mu- 
nicipal Court,  the  plaintiff  in  error  excepted  ;  and  the  facts  on 
which  the  application  was  based  and  resisted,  appear  in  the 
bill  of  exceptions. 

From  an  attentive  consideration  of  the  evidence,  contained 
in  the  depositions,  we  have  concluded  that  this  evidence  es- 
tablishes, 

1.  The  payment  of  the  full  amount  of   the  judgment  by 
Pearsons,  one  of  the  co-defendants,  to  the  agent  of  the  plaint- 
iff in  the  original  judgment,  under  a  written  authority  from 
Hugunin,  the  plaintiff,  to  receive   the   same ;  and   that  the 
agent  applied  this  amount  so  received  on  the  judgment,  to  the 
payment  of  a  bill  of  exchange  due  by  Hugunin  to  the 
l)ranch  of  the  State  Bank  of  *Illinois  at  Chicago,  of     [*564] 
which  Hugunin's    agent  was  then   the  cashier,  the 

bank  being  the  holder  of  the  bill. 

2.  That  after  this  payment  the  alias  writ  of  fieri  facias 
was   issued  and  placed  in  the  hands  of  the  deputy   sheriff, 
Smith,  who  swears  that  Pearsons,  the  co-defendant  of  Russell, 
had  the  entire  control  of  the  writ  of  execution.      That  he, 
Smith,  acted  under  his  orders,  and  not  the  plaintiff,    Hugu- 
nin's, (who  declared  he  had  no  longer  any  interest  in  the  cause,) 
and  sold  the  real  estate  named  in  his  return,  by  the  directions 
of  Pearsons,  who  also  became  the  purchaser. 

There  aie  other  facts  attending  the  transaction,  showing 

699 


564  SPRINGFIELD. 


Russell  v.  Hugunin  et  al. 


clearly  that  Pearsons,  after  the  payment,  represented  the 
judgment  as  discharged,  and  that  it  was  no  longer  a  lien  on 
his  real  estate,  and  that  he  did  actually  effect  loans  on  mort- 
gage of  his  real  estate,  under  such  representations.  "We  can 
not  doubt  then  that  the  payment  extinguished  this  judgment, 
and  that  the  parties  so  intended  the  payment  should  be  ap- 
plied. It  does  not  appear  that  Pearsons  owed  to  Hugunin 
any  money  on  any  other  account,  and  if  the  money  so  paid 
was  not  intended  to  be  so  applied,  to  what  possible  object  was 
it  to  be  carried  ?  Pearsons  would  not  surely  make  it  a  gratu- 
ity, and  the  only  rational  inference  to  be  drawn  from  the  facts 
is,  that  as  it  was  paid  on  the  order  to  Brown,  the  cashier  of  the 
bank,  and  corresponded  with  the  amount  of  the  judgment  and 
interest  thereon  up  to  the  day  of  payment,  it  was  paid  in  ex- 
tinguishment thereof.  Brown  so  considered  it,  and  all  the  par- 
ties at  the  time.  The  subsequent  application  of  Pearsons  to 
Brown,  to  alter  the  entries  on  the  books  of  the  bank,  shows 
that  it  was  an  after-thought  of  Pearsons,  to  change  the  appli- 
cation for  the  purposes  of  using  the  execution  to  enforce  the 
payment  of  the  judgment  by  Russell ;  and  it  appears  that  the 
real  estate  of  Russell  was  sold  to  the  amount  of  the  whole 
judgment,  not  for  a  moiety,  which  in  equity  each  party  might 
be  liable  only  to  pay,  as  between  them.  There  is  one  circum- 
stance which  it  seems  to  us  is  conclusive  in  this  question..  It 
was  competent  for  Pearsons  or  Ilugunin  to  have  shown  on 
the  hearing  that  the  payment  to  Brown  was  not  in  extinguish- 
ment of  the  judgment ;  not  having  done  so  the  conclusion  is 
irresistible,  that  the  payment  was  made  on  the  judgment,  and 
if  so,  then  it  was  in  satisfaction  thereof.  Considering  that  the 
judgment  was  fully  satisfied  by  the  payment  to  Brown,  we 
are  of  opinion  that  the  judgment  of  the  Municipal  Court  was 
erroneous  and  should  be  reversed. 

It  is  therefore  ordered  that  the  judgment  of  that  Court 
overruling  the  motion  and  dismissing  the  same,  be  reversed ; 
and  this  Court  proceeding  to  render  such  judgment  as  the 
Municipal  Court  ought  to  have  done,  do  order  and  adjudge, 
that  the  said  writ  of  alia-s  fieri  facias,  and  the  sale  and  all 

other  proceedings  founded  thereon,  be  set  aside  and 
[*565]  annulled,  and  for  nothing  *esteemed,  and  that  the 

plaintiff,  Hugunin,  enter  satisfaction  of  record  on  said 
judgment  in  the  Circuit  Court  of  the  county  of  Cook,  and 
that  the  plaintiff  in  error  recovers  his  costs  in  this  Court  and 
the  Court  below.  And  it  is  further  ordered  that  the  clerk  of 
this  Court  certify  this  judgment  to  the  clerk  of  the  Circuit 
Court  of  the  county  of  Cook,  where  the  records  and  proceed- 
ings of  the  said  Municipal  Court  have  been  transferred  by  the 

600 


JULY  TEEM,  1839.  565 

Cushman  v.  Rice  et  al. 

law  abolishing  the  said  Municipal  Court,  in  order  that  the 
said  Circuit  Court  shall  do  what  of  right  ought  to  be  done  in 
the  premises,  to  give  effect  to  this  judgment,  and  cause  satis- 
faction of  record  to  be  entered  on  said  judgment. 

Judgment  reversed. 
LOCKWOOD,  J.,  took  no  part  in  the  decision  of  this  case. 


CALVIN  CUSHMAN,  plaintiff  in  error,  v.  E.  J.  RICE  and 
FITCH  E.  DOOLITTLE,  defendants  in  error. 

Error  to  Fayette. 

CERTIORARI— WHAT  NECESSARY  FOR. — The  statute  allowing  causes  to  be 
taken  to  the  Circuit  Court  by  certiorari,  requires  the  petition  for  that  pur- 
pose to  set  forth,  that  the  judgment  complained  of  was  not  the  result  of  neg- 
ligence on  the  part  of  the  petitioner,  and  that  in  his  opinion  it  is  unjust — set- 
ting forth  wherein  the  injustice  consists.  It  must  also  allege  that  it  was 
not  in  the  power  of  the  party  to  take  an  appeal  in  the  ordinary  way;  and 
set  forth  particularl  7  the  circumstances  that  prevented  him  from  so  doing. a 

Absence  from  the  county,  and  ignorance  of  the  rendition  of  a  judgment 
by  a  justice  of  the  peace,  against  a  plaintiff,  upon  a  note  lodged  with  the 
justice  for  collection,  are  not  a  sufficient  excuse  for  not  taking  an  appeal  in 
the  ordinary  way,  and  do  not  authorize  the  allowance  of  a  writ  of  certiorari. 

Semble,  That  where  a  writ  of  certiorari  to  remove  a  cause  from  a  justice 
of  the  peace  to  the  Circuit  Court,  is  improvidently  allowed,  the  Circuit 
Court  should  quash  the  writ  and  dismiss  the  appeal. 

THE  proceedings  in  this  cause  in  the  Fayette  Circuit  Court 
were  had  at  the  April  term,  1839,  before  the  Hon.  Sidney 
Breese.  That  Court  quashed  the  writ  of  certiorari,  and  dis- 
missed the  appeal.  The  plaintiff  excepted  and  brought  the 
cause  to  this  Court  by  writ  of  error. 

The  petition  of  the  plaintiff  to  the  Probate  Justice  for  a 
writ  of  certiorari,  states,  "  That  some  time  in  the  month  of 
July  last,  he  placed  in  the  hands  of  one  Allen  McPhail,  Esq., 
a  justice  of  the  peace  of  said  county  of  Fayette,  a  note  of 
hand  for  collection,  on  E.  J.  Rice  and  F.  E.  Doolittle,  on  which 
suit  was  commenced  by  summons,  and  the  trial  was  had  on  the 
27th  day  of  August,  1838,  in  the  absence  of  your  petitioner,  and 
the  said  justice,  after  hearing  the  matter  and  receiving  various 
testimony  wholly  inadmissible  and  irrelevant,  deter- 
mined and  gave  judgment  *against  your  petitioner  for  [*566] 
the  costs  of  suit.  At  the  time  said  judgment  was  ren- 

CITED  :  Negligence  in  defense  of  suit.  85  111.292.  Certiorari  should  be 
dismissed,  when.  16  111.  277. 

•  Certiorari — Grounds  far,  contents  of  petition.  See  Starr  &  Co.  111.  Stat., 
Ch.  79,  Tf  76,  and  authorities  there  cited. 

601 


SPKLNTGFIELD. 


Cushman  v.  Rice  et  al. 


dered  agaiust  your  petitioner  he  was  absent  from  the  county, 
aind  was  not  informed,  nor  did  he  know,  that  said  judgment 
was  given  against  him  until  after  the  expiration  of  the  twenty 
days  allowed  by  law  for  taking  appeals ;  and  he  was  wholly 
and  entirely  prevented  from  taking  an  appeal,  in  consequence 
of  his  absence  from  the  county,  and  his  inability  to  get  to  Van- 
dalia.  He  further  states  that  said  suit  was  commenced  on  a 
promissory  note  for  the  payment  of  money,  for  a  good  and 
valuable  consideration,  and  the  said  justice  should,  and  of  right, 
according  to  law,  ought  to  have  given  judgment  for  your  pe- 
titioner, when,  in  fact,  he  erroneously  gave  judgment  against 
him,  and  in  favor  of  the  defendant  in  said  suit." 

A.  P.  FIELD,  for  the  plaintiff  in  error. 

L.  DAVIS  and  F.  FOKMAN,  for  the  defendants  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 
This  case  was  taken  from  the  judgment  of  a  justice  of  the 
peace,  to  the  Circuit  Court,  by  writ  of  certiorari,  as  allowed 
by  statute  ;  and  by  that  Court  the  cause  was  dismissed.  From 
this  decision  the  plaintiff  below  has  appealed  to  this  Court. 
The  statute  allowing  causes  to  be  taken  to  the  Circuit  Court 
in  certain  cases,  requires  the  petition  for  that  purpose  to 
set  forth  that  the  judgment  complained  of  was  not  the  result 
of  negligence  on  the  part  of  the  petitioner,  and  that  in  his 
opinion  it  is  unjust — setting  forth  wherein  the  injustice  con- 
sists. It  must  also  allege  that  it  was  not  in  the  power  of  the 
party  to  take  an  appeal  in  the  ordinary  way,  and  set  forth  par- 
ticularly the  circumstances  that  prevented  him  from  so  doing. 
This  last  requisition  of  the  statute  has  not  been  complied  with 
in  this  case.  The  petition  alleges  no  other  reason  for  not  tak- 
ing an  appeal  within  the  time  limited  by  law  than  absence  from 
the  county,  and  ignorance  of  the  judgment  rendered  by  the 
magistrate.  This  is  not  a  sufficient  excuse  to  except  the  case 
from  the  ordinary  mode  of  appeal.  When  a  party  brings  an 
action,  he  is  bound  to  attend  to  it  through  all  its  stages,  either 
by  himself  or  agent,  and  if  he  omits  to  do  so,  he  must  abide 
by  the  consequences  of  his  inattention,  unless  he  set  out  with 
precision  such  facts  and  circumstances  as  show  that  it  was  not 
in  his  power  to  take  an  appeal  in  the  ordinary  way,  by  the  ex- 
ercise of  every  reasonable  degree  of  attention  and  care.  This 
has  not  been  done  by  the  appellant  in  this  case. 

The  Circuit  Court  decided  correctly,  therefore,  in  dismiss- 
ing the  cause,  and  the  decision  must  be  affirmed  with  costs. 

Judgment  affirmed. 

602 


JULY  TEEM,  1839.  507 

Holmes  v.  Parker  et  al. 


*PALMER  HOLMES,   appellant,  v.  GEORGE  B.    [*567] 
PARKEK  and   SAMUEL  H.   McCftonY,   ap- 
pellees. 

Appeal  from  Peoria. 

CERTIORARI — RECORD. — Where  papers  which  are  lodged  in  the  clerk's  of- 
fice, but  are  not  marked  filed,  are  incorporated  into  a  record  from  the  Court 
below,  a  writ  of  eert-iorari  may  be  issued  to  the  clerk,  to  send  up  a  true 
reeord. 

Where  a  bill  of  exceptions  signed  and  sealed  by  the  judge,  and  an  appeal 
bond,  were  lodged  in  the  clerk's  office,  but  not  marked  filed:  Held,  that 
they  were  not  part  of  the  record  in  the  cause,  and  that  the  appeal  must  be 
dismissed. 

AT  the  December  term,  1838,  of  this  Court,  the  attorney 
for  the  appellee  made  affidavit,  that  so  much  of  the  record  in 
this  cause,  as  stated  that  an  appeal  was  prayed  and  granted, 
and  a  bill  of  exceptions  tendered,  allowed,  signed,  and  sealed, 
and  ordered  to  be  made  a  part  of  the  record,  which  was  done, 
etc.,  (although  a  correct  statement  of  what  transpired  in 
Court,)  was  an  interpolation  of  the  person  who  transcribed 
the  record,  and  obtained  a  writ  of  certiorari  to  the  Court  be- 
low, to  send  up  a  true  record. 

The  clerk,  in  obedience  to  the  writ,  certified  that  among 
the  papers  in  the  case,  were  the  bill  of  exceptions  signed  and 
sealed  by  the  judge,  and  the  appeal  bond  mentioned  in  the 
exemplification  of  tie  record  before  sent  up,  but  the  same 
were  not  marked  filed. 

At  the  present  term  of  this  Court,  the  counsel  for  the  ap- 
pellees moved  to  dismiss  the  appeal,  because  the  record  shows 
no  order  granting  the  appeal.  Thereupon  the  counsel  for 
the  appellant  moved  to  quash  the  writ  u\  certiorari  and  return 
thereto,  on  the  ground  that  such  a  writ  can  only  be  issued  up- 
on an  allegation  of  a  diminution  of  the  record. 

"W.  FRISIJY  and  G.  T.  METCALF,  for  the  appellees. 
S.  T.  LOGAN,  for  the  appellant. 

Per  Curiam: 

The  certiorari  was  properly  granted.  If  in  a  case  like  the 
present,  the  writ  could  not  iVsue,  there  might  be  no  remedy 
for  an  interpolation  of  a  record. 

The  appeal  must  be  dismissed. 

Appeal  dismissed. 

CITED:     Certiorari,  40  111.  68. 


5C8  SPEINGFIELD. 


Brooks  et  al.  v.  The  Town  of  Jacksonville. 


[*568]  *SAMUEL  S.  BROOKS  and  MURRAY  McCoN- 
NELL,  appellants,  v.  THE  PRESIDENT  AND 
TRUSTEES  OF  THE  TOWN  OF  JACKSONVILLE, 
appellees. 

Appeal  from  Morgan. 

APPEAL — VATUANCE. — On  appeal  from  the  Circuit  to  the  Supreme  Court, 
a  variance  between  the  amount  of  the  judgment  appealed  from,  and  the 
amount  recited  in  the  bond,  is  fatal,  though  the  variance  occurred  through 
tho  mistake  or  inadvertence  of  the  clerk  of  the  Circuit  Court. 

DISMISSAL  OK  APPEAL — WUIT  OF  EUKOR. — Where  an  appeal  is  dismissed, 
the  Court  will  not  permit  the  transcript  of  the  record  to  be  withdrawn  for 
the  purpose  of  bringing  a  writ  of  error. 

IN  this  case  judgment  was  rendered  in  the  Morgan  Circuit 
Court  for  $50  debt  and  $11.55  damages.  In  the  condition  of 
the  bond  the  judgment  was  recited  as  for  $61  and  $50.  The 
deputy  clerk  who  transcribed  the  record  made  affidavit  that 
he  filled  up  the  bond,  and  that  the  variance  happened  through 
his  mistake  and  inadvertence. 

The  appellees  moved  to  dismiss  the  appeal  on  account  of 
the  variance. 

WM.  BBOWN,  for  the  appellees. 
M.  McCoNNELL,  for  the  appellant. 

Per  SMITH,  Justice : 

This  cause  must  be  decided  upon  first  principles.  If  suit 
should  be  brought  on  this  bond  the  allegations  could  not  be 
supported  by  proof. 

This  is  not  like  the  case  of  a  variance  between  a  judgment 
and  an  execution. 

The  appeal  must  be  dismissed. 

Appeal  dismissed. 

McConnell  thereupon  moved  the  Court  for  leave  to  with- 
draw the  transcript  of  the  record,  for  the  purpose  of  bringing 
a  writ  of  error. 

Per  SMITH,  Justice : 

This  motion  must  be  denied.  The  transcript  has  become  a 
part  of  the  records  of  this  Court,  and  can  not  be  withdrawn. 

Motion  denied. 

Variances:  Pearsons  r.  Lee,  ante  193;  Felt  v.  Williams,  ante  206 ;  Lei- 
dig  r.  Rawson.  ante  272;  Hull  v.  Blaisdellet  al.,  ante  332; 'Peyton  et  aJ.  v. 
Tappan,  ante  388;  Linn  r.  Buckingham,  ante  451. 

CITED:    Variance,  3  Gilm.  92. 

(.04 


JULY  TEEM,  1839.  569 

Herrington  v.  Hubbard. 


*  JAMES  HERRINGTON,  appellant,  v.  GURDON  S.     [*569] 
HUBBARD,  appellee. 

Appeal  from  Cook. 

CONTRACT  FOR  SALE  OF  LAND — PART  PAYMENT — SUIT  TO  RECOVER  BACK 

PAYMENT — RESCISSION — SPECIFIC  PERFORMANCE. — Where  A  entered  into 
a  contract  with  B,  for  the  purchase  of  real  estate,  the  consideration  of  which 
was  to  be  paid  in  installments,  the  first  on  some  particular  day,  and  the  resi- 
due at  stated  periods  thereafter,  the  deed  to  be  executed  and  delivered  on 
payment  of  the  first  installment  ;  and  B  refused  to  execute  the  deed  in  pursu- 
ance of  the  agreement,  and  A  thereupon  instituted  proceedings  at  law  for 
the  recovery  of  the  money  paid  on  the  contract:  Held,  that  the  institution 
of  a  suit  for  the  recovery  of  the  money  paid,  is,  in  legal  contemplation,  a 
virtual  rescission  of  the  contract,  and  A  can  not  afterward  co  mpel  the  spe- 
cific execution  thereof  in  a  court  of  equity. 

SAME. — Under  such  circumstances,  B  is  at  perfect  liberty  to  treat  the 
agreement  as  rescinded,  and  a  contract  afterward  made  by  him  for  the  sale 
of  the  same  premises  to  a  third  person,  for  a  valuable  consideration,  is  valid. 
The  proceeding  is  to  be  considered  as  a  disaffirmance  of  the  contract,  and  is, 
in  legal  contemplation,  notice  to  every  person  of  such  fact. 

SAME. — The  bringing  of  a  suit  to  recover  back  the  consideration  money, 
after  a  breach  of  the  contract,  is  equivalent  to  an  express  disaffirmance  of 
the  contract,  and  to  be  regarded  as  sufficient  evidence  of  the  determination 
of  the  party  to  treat  it  as  rescinded,  as  the  consideration  can  only  be  recov- 
ered back  on  the  ground  of  a  disaffirmance  of  the  contract. 

SAME. — A  specific  performance  of  a  contract  will  not  be  decreed  where  a 
party  has  treated  it  as  rescinded  by  suing  to  recover  back  the  consideration 
paid  upon  the  contract. 

SAME. — A  party  can  not  proceed  to  recover  in  an  action  at  law  the  con- 
sideration paid  on  a  contract,  and  proceed  concurrently  in  a  court  of 
equity  for  a  specific  performance  of  the  same  contract,  because  a  recovery 
at  law  is  based  on  an  actual  or  constructive  disaffirmance  of  the  contract ;  and 
a  party  can  not  obtain  a  decree  for  the  specific  execution  of  a  contract,  by  a 
judgment  at  law,  pronounced  disaffirmed. 

ACTION  OF  COVENANT  FOR  SPECIFIC  PERFORMANCE. — Semite.  That  an 
action  of  covenant  to  recover  damages  for  the  non-performance  of  a  con- 
tract, may  be  proceeded  in  concurrently,  with  proceedings  in  chancery  to 
compel  a  specific  performance. 

PARTIES. — If  the  answer  to  a  bill  in  chancery  discloses  an  interest  in  a 
third  person,  in  the  subject  matter  of  the  suit,  he  should  be  made  a  defend- 
ant in  the  bill,  that  he  may  have  an  opportunity  of  defending  his  interests, 
which  might  otherwise  be  taken  away  from  him  without  a  hearing. 

SAME. — The  rule  is  almost  inflexible,  certainly  so  whore  it  can  be  done 
without  extraordinary  difficulty,  or  where  the  defendants  are  not  very  nu- 
merous, and  do  not  reside  in  remote  and  distant  countries,  that  all  parties 
in  interest  shall  be  made  defendants,  so  that  no  decree  may  be  made  which 
would  affect  their  interests  without  their  being  heard. 

CITED  :  Rescission  of  contract,  what  amounts  to,  1  Gil.  100;  4  111.  329;  19 
111.  352;  86  111.  583;  56  111  91,  540:  4  Bradw.  508;  5Bradw.  835;  when 
estopped  by,  47  111.  151 ;  50  III.  183.  Want  of  proper  parties,  when  taken  ad- 
vantage of,  10  Bradw.  839;  102  III.  61.  Parties  in  chancery,  4  Scam.  427; 
19  111.  322;  44  111.  507;  new  party  disclosed,  necessity  of  amending  bill, 
59  111.  137.  Right  of  party  upon  failure  of  performance,  5  Gil.  300. 

605 


569  SPRINGFIELD. 


Herrington  r.  Hubbard. 


SAME. — Courts  will  take  notice  of  the  omission  of  proper  defendants  in 
the  bill,  though  no  demurrer  be  interposed,  when  it  is  manifest  that  the  de- 
cree will  have  the  effect  of  depriving  them  of  their  legal  rights. 

THIS  cause  was  tried  before  the  Hon.  Thomas  Ford,  at  the 
May  term,  1830,  of  the  Cook  Circuit  Court,  on  the  chancery 
side  thereof. 

The  facts  in  the  case,  as  disclosed  by  the  pleadings,  show, 
that  some  time  in  February,  1835,  the  complainant,  Hubbard, 
entered  into  an  agreement  with  Herrington,  the  defendant,  for 
the  purchase  of  a  tract  of  land  containing  fifty  acres,  upon  the 
following  terms,  to  wit :  "  Five  hundred  dollars  to  be  paid  by 
the  said  Hubbard  to  the  said  Herrington  on  the  deliv- 
[*570]  ery  of  the  deed  of  *the  same,  on  or  before  the  first 
day  of  April  next;  Thirteen  hundred  and  seventy -five 
dollars  to  be  paid  within  eighteen  months  from  this  date  with- 
out interest ;  Thirteen  hundred  and  seventy-five  dollars  to  be 
paid  within  eighteen  months  from  this  date,  with  interest  at 
six  per  cent.,  and  five  hundred  dollars  within  the  month  of 
May  next  without  interest.  The  said  Herrington  to  make  a 
good  and  sufficient  warranty  deed,  in  fee  simple,  released  from 
the  right  of  dower  ;  and  the  said  Hubbard  to  make  the  pay- 
ments as  aforesaid." 

The  bill  avers,  u  That  the  complainant  paid  the  said  sum  of 
five  hundred  dollars,  on  or  before  the  first  day  of  April  afore- 
said, and  that  he  has  always  been  ready  and  willing  to  perform 
his  part  of  said  agreement ;  and,  on  having  a  good  deed  from 
Herrington  for  the  premises,  is  willing  to  pay  the  residue  of 
the  purchase  money  according  to  the  agreement."  It  also 
avers,  "  That  Herrington  refuses  to  perform  on  his  part." 

On  the  2nd  of  May,  the  complainant  prosecuted  an  action 
of  covenant  against  Herrington,  to  recover  damages  for  the 
non-performance  of  his  agreement.  On  the  7th  of  same 
month,  the  complainant  instituted  other  proceedings  against  the 
said  Herrington,  to  wit,  an  action  of  assumpsit,  for  the  recovery 
of  the  money  which  he  had  paid  upon  the  first  installment. 
Afterward,  to  wit,  on  the  30th  May,  and  before  the  filing  of  this 
bill,  Herrington,  regarding  the  contract  as  rescinded  by  the 
prosecution  of  the  action  of  assum/psit,  entered  into  a  nego- 
tiation with  one  Truman  G.  Wright,  for  the  sale  of  the  said 
land,  which  resulted  in  a  written  contract  to  sell  on  the  3d  of 
June  following,  upon  which  day,  the  defendant  Herrington, 
in  good  faith,  and  for  a  valid  consideration,  executed  a  deed 
in  fee  of  said  premises  to  the  said  "Wright.  On  the  5th  day  of 
June,  two  days  after  the  execution  and  delivery  of  the  deed 
to  "Wright,  Hubbard  made  a  tender  of  $478.11,  to  Herrington, 

606 


JULY  TEEM,  1839.  570 

Herrington  v.  Hubbard. 

with  a  mortgage  ready  executed,  and  notes  to  secure  the  resi- 
due of  the  purchase  money,  which  he  refused  on  the  ground 
that  said  Hubbard  had  waived  all  right  to  a  conveyance  by 
prosecuting  the  defendant,.  Herrington,  for  a  recovery  of  the 
money  paid  on  the  contract.  After  the  refusal  of  the  tender, 
and  on  the  same  day,  the  complainant  filed  this  bill  for  a  spe- 
cific performance  of  the  agreement,  and  abandoned  his  suits 
at  law. 

The  cause  came  on  to  a  hearing,  and  the  Court  decreed  that 
Herrington  should  convey  the  lands  set  forth  in  the  bill,  by 
metes  and  bounds,  to  the  complainant.  Herrington  appealed 
to  this  Court. 

J.  H.  COLLINS  and  GILES  SPRING,  for  the  appellant,  assigned 
causes  of  error,  and  relied  upon  the  following  points  and 
authorities : 

*lst.  That  the  said  complainant  had  not  shown  a     [*5T1] 
performance  of  the  agreement  set  forth  in  the  bill,  in 
respect  to  the  first  payment  of  $500,  therein  agreed  to  be 
paid  on  the  delivery  of  the  deed,  on  or  before  the  first   day 
of  April,  1835.     Breese,  273;  Id.  28. 

2d.  That  the  said  Hubbard  has  not  performed  his  part  of 
the  said  agreement,  as  it  regards  the  second  payment,  which 
was  to  have  been  made  in  the  month  of  May. 

3d.  That  the  said  Hubbard  by  his  neglect  to  make  the  first 
and  second  payments,  and  by  prosecuting  his  actions  at  law  for 
a  supposed  breach  of  the  contract,  and  to  recover  back  the 
money  advanced,  abandoned  the  contract,  at  least  so  far  as  to 
forfeit  all  right  to  the  aid  of  a  court  of  equity,  to  enforce  a 
specific  performance. 

4th.  That  the  said  Herrington  has  sold  the  said  premises  to 
an  innocent  purchaser  prior  to  the  filing  of  the  said  bill,  and 
could  not  therefore  be  decreed  specifically  to  perform  said 
contract.  Sugden's  Vendors,  158 ;  R.  L.  587,  §  5 ;  Gale's 
Stat.  663. 

5th.  That  said  bill  is  defective  for  want  of  proper  parties 
defendants.  The  rule  in  regard  to  bills  for  relief,  is,  that 
every  person  who  is  at  all  interested  in  the  event  of  a  suit,  or 
necessary  to  the  relief,  must  be  a  party,  in  order  to  enable  the 
Court  to  settle  the  rights  of  all,  and  make  a  complete  and 
definite  decree  upon  the  matter.  Edwards'  Treatise  on  Par- 
ties in  Equity ;  2  Cooper's  Equity  Reports,  33. 

6th.  Time  is  an  essential  part  of  this  contract,  and  the 
complainant  was  bound  if  he  intended  to  insist  on  having  the 
land  so  to  regard  it.  1  Johns.  Ch.  370 ;  Sugden  on  Ven.  265  ; 
4  Johns.  Ch.  559. 

607 


571  SPRINGFIELD. 


Herrington  v.  Hubbard. 


WALTER  B.  SCATES  and  JAMES  GRANT,  for  the  appellee,  re- 
lied upon  the  following  points  and  authorities : 

Time  is  not  to  be  considered  in  equity  as  of  the  essence  of  a 
contract.  3  Vesey,  Jr.  692;  Hov.  Sup.  to  Ibid.  318;  TVesey, 
Jr.  202;  7  Ibid.  264;  12  Ibid.  326;  12  Ibid.  373;  13  Ibid. 
289;  Uflrid.  432;  18  Ibid.  335;  19  Ibid.  219;  1  Simmons 
and  Stewart,  190  ;  5  Serg.  and  Rawle,  323. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
Hubbard  tiled  his  bill  against  Herrington  in  the  Cook  Cir- 
cuit Court,  to  compel  the  specilic  performance  of  a  written 
contract  to  convey  fifty  acres  of  land,  for  the  consideration  of 
$3,750,  payable  by  installments,  at  different  periods  of  time. 
It  is  deemed  unimportant  to  the  decision  of  the  cause,  to  state 
with  precision  the  terms  of  the  contract,  or  the  facts  attendant 
on  the  first  payment,  and  the  subsequent  overture  and  negoti- 
ations between  the  parties,  to  carry  out  the  objects  of  the 
agreement,  as  they  appear  from  the  evidence,  because  it  is 
supposed  that  there  are  three  highly  important  points 
[*572]  developed  by  other  evidence,  on  *\vhich  the  de- 
cision of  the  case  must  of  necessity  rest,  independent 
of  these.  It  appears  that  Hubbard  previous  to  the  filing 
of  his  bill  in  equity,  commenced  in  the  Cook  Circuit  two  acr 
tions  at  law,  against  Herrington,  on  this  same  contract:  the 
first  on  the  2d  of  May,  1835,  in  covenant,  to  recover  damages 
from  Herrington  for  the  non-performance  of  the  contract  on 
his  part ;  and  the  second  on  the  9th  of  May,  of  the  same  year, 
in  assumpsit)  to  recover  back  the  amount  of  the  consideration 
money  paid  by  him.  Both  of  these  suits  were  subsequently 
dismissed,  and  the  cause  in  equity  instituted. 

On  the  3d  of  June,  1835,  and  before  the  filing  of  the  bill 
in  equity,  Herrington  entered  into  a  written  contract  with  one 
Truman  G.  Wright,  to  sell  and  convey  the  same  lands  to  him, 
for  the  consideration  of  $7,440  ;  and  on  the  23d  of  the  same 
month  actually  executed  and  delivered  to  Wright  a  full  and 
absolute  conveyance  of  these  lands,  which  was  placed  for  rec- 
ord in  the  office  of  the  Recorder  of  the  county  of  Cook,  on 
the  1st  of  July  following.  From  these  facts,  which  are  in- 
controvertible, three  questions  arise  :  First,  was  not  the  insti- 
tution of  the  action  of  assumpsit,  a  virtual  rescinding  of  the 
contract  between  Hubbard  and  Herrington,  and  in  legal  con- 
templation must  it  not  be  so  considered  ?  Secondly,  were  not 
Herrington  and  Wright  justified  in  so  considering  it ;  and  is 
not  the  contract  and  sale  between  them  for  these  lands  valid, 
Wright  being  a  purchaser  for  a  valuable  consideration  ? 
Thirdly,  ought  not  Wright  to  have  been  made  a  party  in  the 

008 


JULY  TEEM,  1839.  572 

Herrington  v.  Hubbard. 

suit ;  and  if  so,  is  not  the  decree  erroneous  for  the  omission  to 
name  him  in  the  bill  ? 

Whatever  may  have  been  the  state  of  facts  between  the  par- 
ties, as  it  regards  the  payment  of  the  first  installment,  and  the 
readiness  of  Hubbard  to  complete  the  others  after  the  time 
for  the  second  payment  had  expired,  there  would  seem  to  be 
no  rational  doubt  that  Hubbard  had  determined  to  treat  the 
contract  as  rescinded,  by  the  acts  of  the  parties,  in  their  non- 
compliance  to  carry  it  into  execution  at  the  precise  time  stip- 
ulated. 

He  first  institutes  his  action  of  covenant  to  recover  damages 
for  the  non-performance  by  Herrington  of  his  portion  of  the 
agreement;  and  afterward  brings  his  action  to  recover  back 
the  consideration  money  }  aid.  We  think  this  is  sufficient  evi- 
dence of  his  determination  to  treat  the  contract  as  rescinded  ; 
and  that  it  is  equiva^nt  to  an  express  disaffirmance  of  it. 
Such  must  be  the  legal  intendment  of  his  act ;  for  he  certainly 
could  not  recover  back  the  consideration  money  paid,  but  on 
the  ground  of  a  disaffirmance. 

Herrington,  then,  had  a  right  so  to  consider  it ;  and  was  at 
liberty  to  treat,  and  enter  into  a  contract  with  Wright,  for  a 
sale  to  him  of  the  lands.     Wright  finding  this  suit 
pending,    must  have  Considered  it  a   disaffirmance     [*573] 
(and  we  are  justified  in  presuming  that  Wright  had 
notice,  because  the  proceeding  in  legal  contemplation  is  notice 
•to  every  person),  and  felt  that  he  might  legally  enter  into  a 
contract  with  Herrington  for  the  sale  and  purchase  without  the 
existence   of  any  obstacle ;  and  accordingly  did  so,  and  con- 
summated the  purchase  on  the  23d  of  June,  1835. 

It  will  be  perceived  that  the  agreement  between  Wright 
and  Herrington  is  entered  into  on  the  3d  of  June,  1835,  two 
days  previous  to  the  filing  of  the  bill.  Wright,  therefore, 
purchased  without  any  knowledge  that  Hubbard  had  any  in- 
tention of  insisting  on  a  specific  performance  of  the  original 
contract  between  him  and  Herrington. 

There  is  no  dispute  that  Wright  is  a  purchaser  for  a  valua- 
ble consideration  ;  and  we  think  from  the  facts,  as  they  appear, 
that  he  acquired  a  legal  title  to  the  lands,  Herrington  being 
at  perfect  liberty  to  treat  the  contract  as  disaffirmed  by  the 
prosecution  of  Hubbard,  to  recover  back  the  consideration 
money.  It  was  urged  at  bar,  that  Hubbard  had  concurrent 
remedies,  that  he  might  proceed  at  law  and  equity  at  the  same 
time ;  though  he  could  not  obtain  damages  and  enforce  a 
specific  performance,  he  might  elect  which  remedy  he  would 
pursue,  and  which  to  abandon,  after  their  institution.  The 
doctrine  of  concurrent  remedies  is  not  disputed ;  but  he  surely 

VOL.  1-39  609 


573  SPKINGFIELD. 


Herringion  r.  Hubbard. 


could  not  proceed  to  recover  back  in  an  action  at  law,  the  con- 
sideration money  paid,  which  must  be  based  on  an  actual  or 
constructive  disaffirmance  of  the  contract ;  and  also  obtain  a 
decree  for  the  specific  execution  of  a  contract,  pronounced  by 
a  judgment  at  law  disaffirmed.  The  action  for  damages  for 
the  non-performance  of  the  contract  in  covenant,  and  his 
remedy  in  equity,  might  probably  have  been  proceeded  in  at 
the  same  time  ;  and  he  might  have  elected  which  he  would 
prosecute  to  final  judgment ;  but  most  certainly  the  action  in 
assumpsit,  for  the  consideration  money,  can  not  be  ranked  un- 
der the  class  of  those  termed  elective. 

For  these  reasons  we  think  the  decree  is  erroneous,  and  that 
on  the  first  two  points  it  should  be  reversed. 

With  reference  to  the  third,  upon  the  supposition  that  our 
views  on  the  first  and  second  are  not  justified,  the  interest 
which  Wright  'had  acquired  in  the  lands,  required  that  he 
should  on  the  coming  in  of  the  defendant's  answer,  which  dis- 
closed that  interest,  have  been  made  a  defendant  to  the  bill. 
The  rule  is  almost  inflexible — certainly  so,  where  it  can  be  done 
without  extraordinary  difficulty,  or  where  the  defendants  are 
not  very  numerous,  and  do  not  reside  in  remote  and  distant 
countries,  that  all  parties  in  interest  shall  be  made  defendants, 
so  that  no  decree  shall  be  made  which  can  affect  their  inter- 
est, without  their  being  heard.  Courts  will  take  notice  of  the 
omission,  though  no  demurrer  be  interposed  for  want 
[*574]  of  proper  parties,  when  it  is  manifest  that  the  *de- 
cree  will  have  such  an  effect.  As  then  the  decree  in 
this  case  manifestly  adjudges  Wright's. title  to  the  land  void, 
it  is,  we  think,  for  this  reason,  erroneous,  Wright  having  had 
no  opportunity  to  defend  his  interests,  which  have  been  taken 
away  without  a  hearing. 

For  the  reasons  assigned,  and  a  conviction  that  there  is  not 
sufficient  equity  in  the  bill,  and  that  Hubbard  has  voluntarily 
abandoned  those  he  may  have  acquired  under  the  contract,  we 
are  of  the  opinion  that  the  judgment  of  the  Circuit  Court 
should  be  reversed,  and  the  bill  dismissed  with  costs. 

Judgment  reversed. 

610 


DECISIONS 


SUPREME  COURT 


OF  THE 


DELIVEKBD 

DECEMBER  TERM,  1839,  AT  SPRINGFIELD. 

HIRAM  HUGUNIN,  plaintiff  in  error,  v.  EDWAKD  NICH- 
OLSON, defendant  in  error. 

Error  to  Cook. 

JUSTICE  OP  PEACE — JURISDICTION. — A  justice  of  the  peace  has  jurisdic- 
tion in  a  case  where  the  original  indebtedness  exceeds  one  hundred  dollars, 
but  has  been  reduced  below  that  sum  by  fair  credits,  although  the  account 
may  not  have  been  liquidated  between  the  parties. 

ALLOWANCE  OF  CREDIT  BY  JUSTICE — PRESUMPTION. — The  Court  will 
presume  that  a  credit  allowed  on  an  account  by  the  plaintiff,  in  a  suit  before  a 
justice  of  the  peace,  is  a  fair  one,  until  the  contrary  is  shown. 

HUGUNIN  brought  an  action  against  Nicholson,  before  a 
justice  of  the  peace  of  Cook  county,  upon  an  account  amount- 
ing to  $909,  upon  which  a  credit  was  entered  of  $822.19 — 
leaving  a  balance  due  of  $86.81.  It  did  not  appear  from  the 
account  whether  any  settlement  had  been  had  between  the 
parties. 

The  summons  to  the  defendant  commanded  him  to  answer 

CITED:  Jurisdiction  of  justice,  2  Scam.,  477.  See,  also,  Simpson  v.  Raw- 
lings,  ante  28,  note. 

Old  Note.  See  Simpson  v.  Rawlings,  ante  28;  Bowers  v.  Green,  ante  42; 
Tindall  v.  Meeker,  ante  137;  Sands  ».  Delap,  ante  168;  Mitcheltree  v. 
Sparks,  ante  198;  note  to  Trader  et  al.  ».  McKee,  ante  560.  See,  also, 
Newland  v.  Nees,  3  Blackf.  460. 

611 


575  SPRINGFIELD. 


Hugunin  v.  Nicholson. 


to  the  plaintiff  for  a  failure  to  pay  a  demand  not  exceeding 
$100.  On  the  return  of  the  summons  the  parties  appeared, 
and  by  agreement  the  cause  was  continued  for  a  few  days,  at 
the  expiration  of  which  the  justice  rendered  .judgment  for 
the  plaintiff  for  $86.81  and  costs.  The  defendant  appealed  to 
the  Circuit  Court  and  at  the  April  term,  1839,  the  Hon.  John 
Pearson  presiding,  the  defendant  moved  the  Court  to  dismiss 
the  suit  and  reverse  the  judgment  of  the  justice  of  the  peace, 
for  want  of  jurisdiction  in  the  justice.  The  motion  was  re- 
sisted by  the  plaintiff  but  sustained  by  the  Court,  and 
[*576]  the  cause  dismissed,  and  a  judgment  for  *costs  ren- 
dered against  the  plaintiff,  who  excepted  to  the  opin- 
ion of  the  Court,  and  tendered  his  bin  of  exceptions,  which 
was  signed  and  sealed  by  the  Court.  The  cause  was  brought 
to  this  Court  by  writ  of  error. 

J.  Y.  SCAMMON,  for  the  plaintiff  in  error,  relied  on  the 
statute  of  March  2,  1833  ;  R.  L.  415  ;  Gale's  Stat  425. 

I.  N.  ARNOLD,  for  the  defendant  in  error,  cited  Breese,  21, 
153,  263,  293 ;  /Sands  v.  Delap,  (ante  168) ;  Leigh  v.  Mason, 
(amte  249,)  and  contended  that  the  statute  of  1833  did  not 
intend  to  give  a  justice  jurisdiction  to  investigate  an  account 
exceeding  $100.  It  only  gave  the  justice  jurisdiction  where 
the  demand  had  been  reduced  by  fair  credits,  the  accounts 
liquidated,  and  a  balance  struck  by  the  parties. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  commenced  originally  by  the  plaintiff 
against  the  defendant,  before  a  justice  of  the  peace  of  Cook 
county,  and  judgment  rendered  for  the  plaintiff  for  $86.81 
and  costs,  from  which  decision  of  the  justice  of  the  peace,  the 
defendant  appealed  to  the  Cook  Circuit  Court. 

The  defendant  moved  the  Circuit  Court  to  dismiss  the  suit 
for  want  of  jurisdiction,  and  said  motion  was  sustained  and  the 
suit  dismissed.  The  plaintiff,  Hugunin,  excepted  to  the  opin- 
ion of  the  Court  in  dismissing  the  suit,  and  assigns  for  error 
the  dismission  of  the  suit,  and  giving  judgment  for  costs  for  the 
defendant.  The  summons  issued  by  the  justice  was  to  answer 
for  a  failure  to  pay  the  plaintiff  a  demand  not  exceeding  one 
hundred  dollars.  The  transcript  of  the  justice  shows  an  ac- 
count of  debits  amountingto  $909,  and  credits  to  the  amount  of 
$822.19,  and  a  balance  of  $86.81  struck  in  favor  of  the  plaintiff. 
The  words  of  the  statute  of  2d  March,  1833,  (R.  L.  415  ; 
Gale's  Stat.  425)  are  "  although  said  debt  or  demand  may  have 
been  originally  over  one  hundred  dollars  and  reduced  below 

612 


DECEMBER  TEEM,  1839.  576 

Lurton  v.  Gilliam  et  al. 

that  sum  by  fair  credits,"  etc.  It  appears  in  this  case  that 
the  demand  far  exceeded  one  hundred  dollars,  but  was  reduced 
by  credits  appearing  on  the  account,  to  a  sum  within  the  juris- 
diction of  the  magistrate.  No  evidence  was  adduced  showing 
that  the  credit  was  given  solely  for  the  purpose  of  conferring 
jurisdiction,  as  appears  by  the  bill  of  exceptions.  We  are  to 
presume  the  credits  were  fair,  until  the  contrary  is  shown, 
which  has  not  been.  The  judgment  of  the  Circuit  Court  of 
Cook  County  is  reversed  with  costs,  and  the  cause  remanded 
to  the  Circuit  Court  to  be  tried  de  now. 

Judgment  reversed. 


*  JAMES    H.    LURTON,    plaintiff    in  error,  v.     [*577] 
WILLIAM  GILLIAM  and  JAMES  C.  CH ALLEN, 
defendants  in  error. 

Error  to  Morgan. 

NON-JOINDER  OF  PARTIES — PLEADING. — Where  a  contract  is  joint,  and 
only  one  of  the  makers  are  sued,  the  non-joinder  of  the  other  parties  can  be 
taken  advantage  of  only  by  plea  in  abatement. 

CONTRACT  IN  SEVERALLY— WAGER. — Where  B.  and  L.  purchased  a  piece 
of  cloth  at  a  store  on  credit,  and  at  the  time  of  the  purchase  a  memorandum 
was  made  as  follows:  "If  Mr.  Douglas  is  elected  to  Congress,  Brown  is  to 
pay  for  the  cloth;  if  Mr.  Stuart  is  elected  James  Lurton  has  it  to  pay." 
Held,  that  the  contract  was  in  severalty.  Held,  also,  that  the  contract 
for  the  sale  of  the  cloth  was  valid,  and  was  not  tainted  by  the  bet  of  B. 
and  L. 

EVIDENCE — PUBLIC  PAPER. — The  State  Register,  being  made  by  law  the 
public  paper  in  which  the  official  acts  of  the  Governor  required  to  be  made 
public  are  published,  is  correctly  admitted  in  evidence  to  prove  the  existence 
of  facts  stated  in  the  Governor's  Proclamation. 

SAME— PROCLAMATION  OF  GOVERNOR.— The  Proclamation  of  the  Gov- 
ernor declaring  who  is  elected  to  Congress  is  prima  facie  evidence  of  the 
facts  therein  stated. 

IxTEREst. — Interest  is  recoverable  upon  an  account  for  goods  sold,  from 
the  time  the  amount  is  ascertained  by  the  parties ;  and  when  a  demand  is  sued 
before  a  justice  of  the  peace  and  appealed  to  the  Circuit  Court,  that  Court 
may  give  judgment  for  more  than  the  amount  claimed  before  the  justice,  if 
the  excess  accrued  by  way  of  interest.* 

"Interest — When  allmved  on  accounts. 

Interest  runs  on  the  balance  of  an  account  from  the  time  when  it  is 
liquidated.  Daniels  v.  Osborn,  75  III.  615;  Clark  r.  Dutton,  69  111.  521; 
Casey  v.  Carver.  42  111.  225:  Underbill  v.  Gaff,  48  111.  198;  Williams  v.  Fin- 
ney,  16  Vt.  297;  Cooper  v.  Coates.  21  Wall.  105;  Walden  v.  Sherburne,  15 
Johns.  409. 

An  agreement  to  pay  interest  may  be  inferred  from  the  course  of  dealing 
between  the  parties  or  from  the  uniform  practice  of  the  creditor,  known  to 
the  customer  at  the  time  of  dealing  to  charge  interest,  or  from  a  general 
usage  in  any  branch  of  trade,  known  to  the  parties.  Ayers  v.  Metcalf ,  39  111. 

613 


577  SPRINGFIELD. 


Lurton  v.  Gilliam  et  al. 


THIS  was  an  action  originally  instituted  before  a  justice  of 
the  peace  of  Morgan  county.  Judgment  was  rendered  by  the 
justice  in  favor  of  the  plaintiffs,  the  defendants  in  this  Court. 
The  defendant  appealed  to  the  Circuit  Court,  where  the  cause 
was  tried  and  the  judgment  affirmed  at  the  June  term,  1839, 
for  $35.26  and  costs,  the  Hon.  Samuel  H.  Treat  presiding. 
The  cause  was  brought  to  this  Court  by  writ  of  error. 

Upon  the  trial  in  the  Court  below,  the  following  bill  of  ex- 
ceptions was  taken : 

"  Be  it  remembered,  that  on  the  trial  of  this  cause,  the 
plaintiffs  produced  a  witness  who  testified  that  when  the  goods 
were  bought,  a  memorandum  of  the  transaction  was  made  upon 
the  plaintiff's  books,  and  the  clerk  of  the  plaintiffs  then  pro- 
duced a  copy  of  the  memorandum,  which  was  filed  and  is 
herewith  made  a  part  of  the  record  in  this  cause : 
*  P.  M.  Brown  &  James  Lurton 

To  2£  yards  Fine  Cloth,  $12,  $28  00 

Trimmings  for  Coat,  6  00 

$34  00 

If  Mr.  Douglas  is  elected  to  Congress,  P.  M.  Brown  is  to 
pay  for  the  cloth  ;  if  Mr.  Stuart  is  elected,  James  Lurton  has 

it  to  pay.' 

[*578]  *  Whereupon  the  plaintiffs  offered  in  evidence 
the  State  paper,  and  read  therefrom  the  Proclama- 
tion of  the  Governor  of  Illinois,  declaring  the  election 
of  Stuart  to  Congress,  which  was  objected  to  by  the  de- 
fendant, but  admitted  by  the  Court.  The  defendants  then 

307;  Fisher  v.  Sargent,  10  Gush.  250;  Rayburn  v.  Day,  27  111.  46;  Esterly  v 
Cole,  3  N.  Y.  502;  McAllister  v.  Reab,  4  Wend.  488;  Veithsv.  Hagge,  8  la. 
163;  Flake  v.  Carson,  33  111.  518.  See  Parmelee  v.  Lawrence,  48  111.  331. 

In  this  State  interest  is,  by  statute,  recoverable  on  an  open  account  where 
there  has  been  an  unreasonable  and  vexatious  delay  of  payment.  See  W. 
Chicago  Al.  Works  v.  Sheer,  104  111.  586;  Devine  v.  Edwards,  101  111.  138; 
Chapman  v.  Burt,  77  111.  337;  Jassoy  v.  Horn,  64  111.  379;  Aldrich  v.  Dun- 
ham, 16  111.  403.  See  111.  Rev.  Stat.,  Ch.  74,  T[  2;  1  Starr  &  C.  111.  Stat.,  p. 
1357,  notes. 

Whether  or  not  there  has  been  an  unreasonable  and  vexatious  delay  is  a 
question  for  the  jury.  Davis  v.  Kenega,  51  111.  170. 

Whether  interest  must  be  claimed  in  declaration,  see  Herman  v.  Schroe- 
der,  74  111.  158. 

In  general  interest  is  not  allowed  on  unliquidated  accounts  for  goods, 
labor,  etc.,  unless  there  is  an  agreement,  express  or  implied,  to  allow  it: 
Flake  c.Carson.  33  111.  518;  Palmers  Stockwell,  9  Gray,  237;  McClintock's 
Appeal,  29  Pa.  St.  360;  Davis  v.  Smith,  48  Vt.  53;  Crosby  v.  Mason,  32  Conn. 
482;  Tucker  v.  Ives,  6  Cow.  193;  Williams  v.  Hervey,  17  Kan.  18.  ~f 

Interest  has  been  allowed  on  an  open  mutual  cash  account.  See  Craven 
r.  Tickell,  1  Ves.  Jr.  60;  Dilworth  v.  Linderling,  1  Binn.  488;  Rensselaer 
Glass  Factory  v.  Reid,  5  Cow.  587. 

614 


DECEMBEE  TEEM,  1839.  578 

Lurton  v.  Gilliam  et  al. 

moved  the  Court  to  dismiss  the  suit  and  reverse  the  -judg- 
ment below,  because  the  contract  appeared  to  have  been 
made  between  the  defendant  in  connection  with  P.  M. 
Brown  and  the  credit  was  given  to  the  two,  and  not  to 
either  one  of  them,  and  because  the  plaintiffs  appeared  to  be 
a  party  to  the  original  bet  or  contract ;  all  of  which  motions 
were  overruled  by  the  Court,  and  the  Court  proceeded  to  ren- 
der judgment  for  the  plaintiff  for  the  amount  of  the  judg- 
ment below.  To  all  of  which  opinions  of  the  Court,  the  de- 
fendant, by  his  attorney,  excepts,  and  prays  that  this,  his  bill 
of  exceptions,  may  be  signed,  sealed  and  made  part  of  the 
record  in  this  cause,  and  which  is  ordered  to  be  done. 

SAML.  H.  TKEAT.     [L.  s.]  " 

The  following  errors  were  assigned: 

"1st.  The  Court  erred  in  refusing  to  dismiss  the  suit  and 
reverse  the  judgment  of  the  Court  below  upon  the  motion  of 
the  defendant,  Lurton. 

2d.  The  Court  erred  in  deciding  that  the  plaintiff  could 
sustain  a  suit  against  Lurton  upon  the  contract  proven,  with- 
out joining  Brown  as  co-defendant. 

3d.  The  Court  erred  in  rendering  judgment  upon  the  con- 
tract proven,  the  same  being  against  good  policy,  unlawful 
and  void,  being  a  bet  to  which  both  plaintiff  ana  defendant 
were  parties. 

4th.  The  Court  erred  in  admitting  the  newspaper,  called 
the  State  Eegister,  to  be  read  in  evidence  in  this  cause. 

5th.  The  Court  erred  in  rendering  judgment  for  thirty-jive 
dollars  and  twenty-six  cents,  when  the  plaintiff 's  account,  tiled 
and  sued  on,  and  his  claim  proven,  only  amounted  to  thirty- 
four  dollars. 

6th.  The  court  erred  in  rendering  judgment  for  the  plaint- 
iff against  the  defendant  upon  the  testimony  adduced." 

M.  McCoNNELL  and  J.  A.  McDouoALL,  for  the  plaintiff  in 
error. 

WM.  BKOWN,  for  the  defendants  in  error. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

In  this  case  the  grounds  of  error  assigned  and  relied  on  are : 

1st.     That  Brown  and  Lurton  should  have  been  joined  in 

the  action,  the  credit  being  joint. 

1  2d.     That  the  defendants  in  error  were  parties  to  an  illegal 

contract. 

615 


5T9  SPRINGFIELD. 


Lurton  r.  Gillium  et  al. 


[*579.]         *3d.  That  the  evidence  offered  to  prove  the  result 
of  the  election,  being  the  State  paper,  was  inadmissi- 
ble as  evidence. 

4th.  That  the  addition  of  interest  to  the  principal  ought 
not  to  have  been  allowed. 

The  first  objection  is  not  good.  If  the  parties  were  only 
jointly  liable,  the  plaintiff  in  error  should  have  pleaded  that 
matter  in  abatement.  But  the  contract  was  manifestly  in 
severalty. 

From  the  facts  disclosed  by  the  bill  of  exceptions,  it  appears 
that  the  contract  for  the  cloth,  although  a  contingent  one  as 
to  the  ultimate  liability  of  the  one  or  the  other  of  the  parties, 
was  to  be  absolute,  as  to  the  party  who  should  lose  the  bet. 
The  purchase  was  made  and  the  credit  given,  after  the  con- 
summation of  the  bet. 

It  does  not  appear  that  the  defendants  in  error  were  in  any 
way  parties  to  the  bet,  or  encouraged  it ;  and  we  do  not  per- 
ceive that  their  contract  for  the  sale  and  delivery  of  the  cloth, 
was  tainted  with  a  participation  in  the  original  agreement  be- 
tween the  parties.  Their  mere  knowledge  of  it  could  not  cer- 
tainly connect  them  with  it;  and  having  parted  with  their 
property  under  the  arrangement,  common  honesty  surely  re- 
quires that  the  party  at  whose  instance  it  was  delivered,  con- 
formably to  his  agreement,  should  be  held  answerable  for  the 
value  of  the  merchandise  delivered.  Money  loaned  to  be  used 
in  gaming,  could  heretofore  have  been  recovered  back  at  com- 
mon law,  but  it  is  now  prohibited  by  the  statute  against  gam- 
ing. (R.  L.  230 ;  Gale's  Stat.  320). 

It  is  not  now  necessary  to  go  into  the  various  reasons  given 
for  the  decisions  which  have  prevailed  in  Courts,  relative  to 
gaining  contracts,  because  this  contract  can  not  be  considered 
contra  bonos  mores,  or  against  sound  policy.  The  case  in  4rth 
Johnson,  of  Sum  v.  Rucker,  has  no  affinity  to  the  present  ac- 
tion. The  State  Register,  being  made  by  law  the  public  paper 
in  which  the  official  acts  of  the  governor  required  to  be 
made  public  are  to  be  published,  was  evidence  of  the  exist- 
ence of  the  Proclamation,  and  the  facts  stated  in  it,  until  the 
contrary  was  shown.  On  the  question  of  interest,  we  are  of 
opinion  that  it  was  properly  allowed.  The  statue  giving  in- 
terest on  all  liquidated  accounts,  embraces  the  case  directly. 

The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 

See  Tindall  v.  Meeker,  ante  137.  V 

616 


DECEMBER  TERM,  1839.  '  580 

The  State  Bank  of  Illinois  v.  Hawley. 


*THE  PRESIDENT,  DIRECTORS  AND  COMPANY     [*580] 
OF  THE  STATE  BANK  OF  ILLINOIS,  plaintiffs 
in  error,  v.  HEZEKIAH  HAWLEY,  defendant 
in  error. 

Error  to  the  Municipal  Court  of  the  City  of  Alton. 

Under  the  Statute  of  Illinois  in  relation  to  promissory  notes  it  is  unnec- 
essary to  give  notice  of  the  non-payment  of  a  note,  in  order  to  charge  the 
assignor  or  indorser. 

THIS  cause  was  tried  in  the  Municipal  Court  of  the  City  of 
Alton,  at  the  January  term,  1839,  before  the  Hon.  William 
Martin.  Judgment  was  rendered  for  the  defendant  in  error. 

GEO.  T.  M.  DAVIS,  for  the  plaintiffs  in  error,  cited  R.  L.  483 
(GaVs  Stat.  526);  Humphreys  v.  Collier  et  al.,  ante  47 ; 
Matmi  v.  Wash,  Breese,  16. 

A.  W.  JONES,  for  the  defendant  in  error. 

WILSON,  Chief  Justice,  delivered  the  opinion  of  the  Court: 

This  action  was  instituted  by  the  bank,  against  the  defend- 
ant, Hawley,  upon  the  following  note,  to  wit: 

"  $500.  One  hundred  days  after  date,  for  value  received,  I 
promise  to  pay  II.  Hawley,  Esq.,  or  order,  the  sum  of  five 
hundred  dollars  ;  negotiable  and  payable  at  the  branch  of  the 
Bank  of  Illinois  at  Alton.  J.  CHEEVER,  Jr." 

This  note  was  assigned  to  the  bank  on  the  same  day  it  was 
made.  The  declaration  is  in  the  usual  form,  with  an  aver- 
ment that  Cheever,  the  maker  of  the  note,  was  before  the  note 
became  due,  and  ever  since  has  continued  to  be  a  non-resident  of 
the  State  of  Illinois,  and  beyond  the  jurisdiction  of  the  Court. 
The  case  was  submitted  to  the  Court  to  be  decided  according 
to  the  law  applicable  to  it ;  and  it  decided  against  the  plaint- 
iff's right  to  recover,  upon  the  ground  that  the  bank  had  failed 
to  give  notice  to  the  defendant,  the  assignor,  that  payment  of 
the  note  had  been  demanded  and  refused  at  the  bank.  This 
decision  is  erroneous.  No  such  notice  is  necessary  in  order  to 
charge  the  assignor  of  a  note  ;  the  rule  is  different  from  that 
applicable  to  bills  of  exchange. 

The  judgment  must  be  reversed  with  costs,  and  the  cause 
remanded. 

Judgment  reversed. 

See  Butterfield  v.  Kinzie,  ante  445;  Brown  v.  Knower,  ante  469;  Arm- 
trong  r.  Caldwell,  ante  546. 

CITED:    Notice  of  non-payment  to  assignor.    24  111.  192;  14  111.  146. 

617 


581  SPRINGFIELD. 


Caton  v.  Harmon. 


[*581]  *JOHN  DEAN  CATOX,  appellant,  v.  ISAAC  HAR- 
MON, who  sues  for  the  use  of  Lemuel  C.  P. 
Freer,  appellee. 

Appeal  from  the  Municipal  Court  of  the  City  of  Chicago. 

Where  an  action  is  brought  by  a  non-resident,  for  the  use  of  a  resident,  no 
security  for  costs  is  required. 

THIS  cause  was  heard  in  the  Court  below  at  the  April  term, 
1838,  before  the  Hon.  Thomas  Ford.  Judgment  was  rendered 
for  the  plaintiff,  and  the  defendant  appealed  to  this  Court. 

G.  SPRING  and  GRANT  GOODRICH,  for  the  appellant. 
J.  GRANT  and  J.  T.  SCAMMON,  for  the  appellee. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  assumpsit  brought  in  the  Municipal 
Court  of  the  City  of  Chicago,  by  Isaac  Harmon,  for  the  use 
of  Lemuel  C.  P.  Freer,  against  John  D.  Caton.  The  defend- 
ant below  moved  the  Court  to  dismiss  the  cause,  predicated  up- 
on the  following  affidavit : 

u  John  Dean  Caton,  being  duly  sworn,  doth  depose  and  say, 
That  the  said  plaintiff,  Isaac  Harmon,  removed  from  the  State 
to  the  Territory  of  Wiskonsin  about  one  year  since,  where  he 
hath  resided  with  his  family  ever  since,  as  deponent  hath  been 
informed,  and  verily  believes.  That  he  was  informed  by  said 
plaintiff  a  short  time  before  the  commencement  of  this  suit 
that  he,  the  said  plaintiff,  was  then  residing  in  Wiskonsin  with 
his  family,  that  he  was  cultivating  a  farm  there,  and  that  he 
liked  the  place,  and  intended  to  reside  there  permanently. 
And  deponent  further  saith,  that  he  has  not  seen  the  said 
plaintiff  in  this  State  since,  nor  has  he  heard  of  his  being  here 
since,  and  further  deponent  saith  not." 

The  suit  was  brought  for  the  use  of  Freer,  and  he  was  the 
person  beneficially  interested.  Nothing  in  the  affidavit  show- 
ing that  Freer  was  a  non-resident,  it  is  to  be  strongly  inferred 
that  he  was  a  resident.  In  all  cases  in  law  or  equity  where  the 
plaintiff  or  person  for  whose  use  an  action  is  to  be  commenced 
shall  not  be  a  resident  of  this  State,  the  plaintiff  or  person  for 
whose  use  the  action  is  commenced  shall,  before  he  institute 

CITED:  Affidavit,  wh^n  defective.  51111.308.  Security  for  costs,  doc- 
trine as  to.  11  111.  120;  93  111.  29. 

618 


DECEMBER  TEEM,  1839.  581 

McConnell  v.  Shields.     Hamilton  v .  Wright. 

such  suit,  file,  or  cause  to  be  filed,  with  the  clerk  of  the  Cir- 
cuit or  Supreme  Court  in  which  the  action  is  to  be  com- 
menced, an  instrument  in  writing  of  some  responsible  person, 
being  a  resident  of  this  State,  to  be  approved  of  by  the  clerk, 
whereby  such  person  shall  acknowledge  himself  bound  to  pay, 
or  cause  to  be  paid,  all  costs,  etc.  See  Scammon's  Revision 
Stat.  HI.,  p.  195,  Sec.  1.  (Gale's  Stat;  R.  L.  165.) 

*  The  judgment  of  the  Municipal  Court  is  affirmed     [*582] 
with  costs. 

Judgment  affirmed. 

Note.    See  Seward  et  al.  v.  Wilson,  ante  192;  Warnock  v.  Russell,  ante 
883;  Linn  v.  Buckingham  et  al.,  ante  451. 


MURRAY    McCoNNELL,  plaintiff   in    error,   v.   JAMES 
SHIELDS,  defendant  in  error. 

Where  the  Court  have  reason  to  believe  that  a  cause  is  fictitious,  they  will 
require  proof  that  the  action  is  not  feigned. 

THIS  Court  having  reason  to  believe  that  this  is  a  feigned 
case,  it  is  therefore  ordered  that  each  of  the  parties  present 
to  this  Court,  at  the  next  June  term,  their  respective  title  pa- 
pers, or  the  cause  will  be  dismissed;  and  that  the  clerk  of 
this  Court  forward  by  mail  to  each  of  the  parties  a  copy  of 
this  order. 


RICHARD  J.  HAMILTON,  Commissioner  of  School  Lands 
for  Cook  county,  Illinois,  plaintiff  in  error,  v.  TRU- 
MAN G.  WRIGHT,  impleaded  with  Norman  Clark, 
defendant  in  error. 

Error  to  Cook. 

PENALTY — PLEADING. — In  an  action  upon  a  note  given  to  the  Commis- 
sioner of  School  Lands  of  a  county,  for  money  loaned  of  the  school  fund,  in 
order  to  entitle  the  plaintiff  to  recover  the  twenty  per  centum  penalty  given 
by  the  statute  of  1835,  it  must  be  ohnnipcl  in  the  declaration. 

The  twenty  per  centum  interest  which  borrowers  of  the  school  fund  are 
compelled  to  pay,  upon  a  failure  to  pay  the  principal  and  interest  punctu- 
ally, is  given  as  a  penalty. 

"CITED:    Penalty  must  be  declared  for,  to  recover.    2  Scam.  57;   14  111. 
268;  19  111.  52;  113  111.  317. 

619 


582  SPKINGFIELD. 


Hamilton  v.  Wright. 


THIS  cause  was  heard  in  the  Court  below,  at  the  August 
term,  1837,  the  Hon.  Jesse  B.  Thomas  presiding.  Judgment 
was  rendered  for  the  plaintiff  in  error. 

F.  PEYTON,  for  the  plaintiff  in  error,  cited  acts  of  1835,  27; 
(Gale's  Stat.  638.) 

G.  SPRING,  for  the  defendant  in  error,  cited  1  Cranch,  194; 
1  Peters'  Cond.  K.  291. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  debt  brought  by  Hamilton,  a 
[*583]  *  commissioner  of  school  lands,  against  Wright  and 
Clark.  The  summons  was  only  served  on  Wright, 
who  suffered  the  judgment  to  go  by  default.  The  defendants 
in  the  note  sued  on  stipulated  to  pay  ten  per  cent,  interest.  On 
the  assessment  of  damages  by  the  clerk,  the  plaintiff  moved 
the  Court  to  instruct  the  clerk  that,  the  plaintiff  was  entitled 
to  recover  twenty  per  cent,  on  the  principal,  and  on  the  inter- 
est due — which  instruction  the  Court  refused  to  give — and 
which  refusal  is  assigned  by  Hamilton  as  error. 

The  declaration  is  in  the  usual  form  of  debt,  and  contains  no 
claim,  for  twenty  per  cent,  damages,  in  case  of  failure  to  pay 
either  principal  or  interest.  The  instructions  were  properly 
refused.  The  twenty  per  cent,  is  given  as  a  penalty,  and  it 
can  not  be  recovered  unless  the  plaintiff  claims  it  in  his  decla- 
ration. 

The  judgment  is  therefore  affirmed,  and  the  defendant  in 
error  is  entitled  to  the  costs  of  this  Court. 

Judgment  affirmed. 

Note.    See  Pearsons  v .  Hamilton,  ante  415. 

620 


DECEMBER  TERM,  1839.  583 

Mulford  v.  Shepard. 


JAMES  H.  MULFORD,  who  sues  for  the  use  of  Alexan- 
der N.  Fullerton,  plaintiff  in  error,  v.  ALBERT 
SHEPARD,  defendant  in  error. 

Error  to  Will. 

NEGOTIABLE  PAPER — WHAT  FRAUD  -WILL,  VITIATE. — The  fraud  which 
will  vitiate  a  negotiable  instrument  in  the  hands  of  an  assignee  who  has  no 
notice  of  the  fraud,  must  be  in  obtaining  the  making  or  executing  of  the 
note.  Fraud  in  relation  to  the  consideration  is  not  sufficient.* 

SAME — IMPEACHMENT  OP  CONSIDERATION. — Before  the  consideration  of 
a  negotiable  note  can  be  impeached  in  the  hands  of  a  bona  fide  indorsee, 
the  defendant  must  show  that  the  note  was  indorsed  after  it  became  due,  or 
that  the  indorsee  had  notice  of  the  want  of  consideration  at  the  time  he  re- 
ceived it,  or  that  there  was  fraud  in  obtaining  the  making  of  the  note. 

MOTION  FOR  NEW  TRIAL. — Semble,  That  a  motion  tor  a  new  trial  may 
be  made  even  after  the  entry  by  the  clerk  of  final  judgment,  if  it  be  made  at 
the  term  of  the  court  at  which  the  first  trial  was  had. 

SALE  OP  LAND — MISREPRESENTATION. — A  misrepresentation,  on  the  sale  of 
a  tract  of  Jand,  of  the  quantity  of  prairie  broken,  and  a  failure  on  the  part 
of  the  seller  to  inform  the  purchaser  that  there  was  an  unexpired  lease  of  a 
portion  of  the  premises  to  a  tenant,  does  not  constitute  a  fraud  so  as  to  bar  a 
recovery  on  a  note  given  for  the  purchase  of  the  same.  Such  facts  might, 
perhaps,  be  matter  of  defense  to  the  note  in  the  hands  of  the  original  payee, 
to  the  extent  of  the  depreciation  on  those  accounts,  in  the  value  of  the  prop- 
erty sold. 

ASSIGNMENT  OP  NOTE. — Semble,  That  in  an  action  on  a  promissory  note 
by  the  indorsee  against  the  maker,  the  presumption  of  law  is  that  the  noto 
was  assigned  before  it  became  due,  until  the  contrary  is  shown. 

AFFIDAVIT  ON  MOTION. — Semble,  That  the  court  will  presume  that  an 
affidavit  made  upon  a  motion  fora  new  trial,  and  referred  to  in  the  bill  of 
exceptions  taken  upon  the  overruling  of  the  motion,  is  true,  unless  the  same 
is  disputed  in  the  record. 

THIS  was  an  action  commenced  by  the  plaintiff  in 
error,  in  the  *Circuit  Court  of  Will  county,  against     [*584] 
the  defendant  in  error,  upon  a  promissory  note  for 
$250,  bearing  date  January  26,  1837,  made  by  the  defendant, 

CITED:  Note,  when  void,  26  111.  495;  what  not  defense  to,  48  111.  394; 
what  is  fraud  in  obtaining,  45  III.  28,  307;  62  111.  114;  71111.  554;  45  111. 
288. 

^Negotiable  paper — What  will  vitiate  promissory  note  in  the  hands  of 
bona  fide  holder. 

The  bona  fide  holder  for  value  of  negotiable  paper,  who  has  received  it 
in  the  usual  course  of  business  is  not  affected  by  the  fact  that  the  original 
consideration  mayjiave  been  illegal.  Town  of  Eagle  v.  Kuhn,  84  111.  292; 
Grimes  v.  Hillenbrand,  4  Hun,  354;  Smith  v.  Columbia  State  Bank,  9  Neb. 
34;  Harlow  v.  Boswell,  15  111.  56;  Holeman  v.  Hobson,  8  Humph.  (Tenn.) 
127. 

The  one  exception  to  this  rule  occurs  where  a  statute,  directly  or  by  nec- 
essary implication,  makes  an  instrument  absolutely  void;  its  transfer  to  a 
bona  fide  holder  giving  it  no  validity.  The  most  familiar  illustration  of  this 
rule  is  in  the  case  of  some  of  the  statutes  against  usury.  Town  of  Eagle  v. 

621 


584  SPKINGFIELD. 


Mulford  v.  Shepard. 


and  payable  to  Abel  Gilbert,  or  order,  six  months  from  date, 
with  interest,  and  by  said  Gilbert  indorsed  and  assigned,  to  the 
plaintiff.  The  declaration  alleges  that  the  note  was  indorsed 
to  the  plaintiff  before  it  became  due. 

The  defendant  pleaded  the  general  issue,  and  by  agreement 
of  parties,  had  permission  "to  give  any  special  matter  in 
evidence  on  the  trial,  which  by  the  law  and  rules  of  pleading, 
could  be  specially  pleaded  in  bar." 

The  cause  was  tried  by  a  jury,  and  a  verdict  rendered  for 
the  defendant,  at  the  September  term,  1838,  of  the  Court  be- 
low, the  Hon.  John  Pearson  presiding.  The  record  states  that 
a  judgment  for  costs  was  rendered  upon  the  verdict  against 
the  plaintiff,  and  thereupon  he  moved  the  Court  for  a  new 
trial.  .  The  motion  for  a  new  trial  was  made  upon  the  same 
day  that  the  trial  was  had.  The  motion  for  a  new  trial  was 
overruled,  and  the  plaintiff  excepted  to  the  opinion  of  the 
Court  in  overruling  the  motion.  The  bill  of  exceptions  states, 
that  "  after  trial  and  verdict  for  the  defendant,  the  plaintiff 
gave  notice  of  a  motion  he  was  about  to  offer  for  a  new  trial, 
and  made  the  motion  on  file,  accompanied  by  the  affidavit  on 
file  with  the  records  of  said  cause,  which  motion  was  over- 
ruled by  the  Court,  and  the  plaintiff  excepted."  The  affidavit 
sets  forth  the  evidence  given  to  the  jury,  and  after  stating 
that  the  note  and  indorsement  to  the  plaintiff  were  fully  proved 
further  states,  "  that  there  was  no  evidence  offered  or  given, 
showing,  or  tending  to  show,  that  the  said  plaintiff  had,  at  the 
time  of  the  indorsement  and  delivery  of  said  note  to  him,  any 
notice  of  the  consideration  for  which  said  note  was  given,  or 
of  the  circumstances  under  which  it  was  given,"  and  that  "  there 
was  no  evidence  given  to  prove  that  any  fraud  or  circumven- 

Kuhn,  84  IU.  292;  Vallett  t>.  Parker,  6  Wend.  615;  Bayley  ».  Taber,  5  Mass. 
286;  Kendall  v.  Robertson,  12  Gush.  158;  Bowen  v.  Buck,  28  Vt.  308. 

Between  the  original  parties  to  negotiable  paper  the  consideration  may 
always  be  inquired  into.  Morgan  v.  Fallenstein,  27  111.  31 ;  Babcock  v.  Bon- 
nell,  80  N.  Y.  244;  Corlies  v,  Howe,  11  Gray,  125;  Bank  v.  Topping,  9 
Wend.  273;  Kirkpatrick  v.  Muirhead,  16  Pa.  St.  117. 

The  same  principle  applies  between  immediate  parties,*,  e.,  parties  in 
direct  relation  with  each  other.  Martin  v.  Kercheval,  4  McLean,  117;  Pilch- 
er  v.  Banks,  7  B.  Mon.  548. 

A  defense  available  against  an  immediate  party  is  available  against  a 
remote  party  in  privity  with  him.  Privity  is  created  in  all  cases  by  want 
of  consideration,  in  some  cases  by  notice;  it  may  be  created  by  agreement. 
Benjamin's  Chahner's  Digest,  pp.  101,  102. 

When  failure  of  consideration  is  a  defense,  partial  failure  is  a  defense  pro 
tanto.  Daggett  v.  Daggett,  8  Gush.  520;  Bennett  v.  Ryan,  9  Gray,  205; 
Sawyer  v.  Chambers,  44  Barb.  42;  Fisher  v.  Sharpe,  5  Daly,  214. 

In  Illinois  it  is  provided  by  statute  that  fraud  or  circumvention  in  obtain- 
ing the  execution  of  a  note  is  a  defense  to  an  action  thereon  whether  by  the 
party  guilty  of  the  fraud  or  any  assignee.  111.  Rev.  Stat.,  Ch.  98,  H 10.  See 
2  Starr  &  C.  111.  Stat.  1665,  where  the  decisions  are  fully  cited. 

622 


DECEMBEE  TEEM,  1839.  584 

Mulford  v.  Shepard. 

tion  was  used  in  obtaining  the  making  or  executing  of  said 
note,  otherwise  than  that  said  Gilbert  represented  that  there 
were  forty  acres  of  prairie  broken  on  the  farm,  for  the  pur- 
chase of  which  the  note  was  given,  and  the  evidence  for  the 
defendant  showed  that  there  was  only  about  fifteen  acres  of  the 
same  broken,  and  the  garden  containing  what  number  of  acres 
the  affiant  did  not  recollect ;  and  that  at  the  time  of  the  mak- 
ing of  the  sale  of  the  Maggord  farm,  (the  consideration  for 
which  the  note  mentioned  in  the  declaration  was  given)  there 
was  snow  on  the  ground  to  the  depth  of  several  inches,  so  that 
witness  could  not  tell  how  much  of  said  land  was  broken  ;  and 
that  there  was  a  lease  to  one  Davis,  and  that  one  Davis  was 
on  a  part  of  the  land  at  the  time  said  note  was  given,  of  which 
Gilbert  did  not  inform  Shepard,  and  that  Shepard  gave  said 
Davis  $75  to  remove  from  said  land ;  and  that  it  was  worth  from 
$3.50  to  $4.00  per  acre  to  break  said  prairie,  and  that 
Gilbert,  after  the  making  said  sale  to  said  *Shepard,  [*585] 
acknowledged  that  he  knew  of  said  lease  to  said  Davis, 
but  that  he  thought  at  the  time  that  he  could  procure  the  re- 
moval of  said  Davis,  and  that  was  the  reason  that  he  did  not 
tell  Shepard  of  said  lease  to  said  Davis."  The  affidavit  con- 
tained other  immaterial  evidence. 

The  plaintiff  prosecuted  a  writ  of  error  to  this  Court,  and 
assigned  for  error  the  refusal  of  the  Court  below  to  grant  a 
new  trial,  and  the  overruling  of  the  motion  therefor.. 

J.  YOUNG  SCAMMON  and  G.  A.  O.  BEAUMONT,  for  the  plaintiff 
in  error,  relied  upon  the  following  points  and  authorities: 

1.  That  the  presumption  of  law  is,  that  a  note  is^indorsed 
before  maturity,  until  the  contrary  is  shown. 

2.  That  the  maker  of  a  note  can  not  avail  himself  of  a 
failure   of  consideration,  or  want   of   consideration,  for  the 
note,  in  an  action  by  an   indorsee  against  him,  unless  he  first 
show  that  the   note  was  indorsed  after  maturity,  or  that  the 
indorsee  had  notice   of  the   fact  at  the  time  he  received  the 
note. 

3.  That  the  fraud  which  vitiates  a  note  in  the  hands  of  an 
indorsee   without  notice,  must  be  in  the  making  of  the  note, 
not  in  the  consideration ;  that  if  the  maker  intended  to  have 
made  such  a  note  as  is  held  by  the  indorsee,  he  can  not  im- 
peach it  in  his  hands ;  the  rule  of  law  being  that   where   one 
of  two  innocent  persons  must   suffer  through   the   fraud  of  a 
third,  he  who  put  it  into  the  power  of  the  fraudulent    in- 
dividual to  commit  the  wrong,  must  suffer.     E.  L.  483;  Gale's 
Stat.    527;  Chitty   on   Bills;    3   Mass.     334;    3    Day,    311; 
Cowen's  Treatise,  97 ;  Forman,  319,  77  (ante  103,  536). 

628 


585  SPBINGFIELD. 


Mulford  v.  Shepard. 


UKI  OSGOOD,  for  the  defendant  in  error,  contended  : 

1.  That  the  motion  for  a  new  trial  was  not  made  in  season  ; 
that  it  was  not  made  until  after  judgment  was  rendered  upon 
the  verdict  of  the  jury.     R  L.  491-2,  §  20  ( Gale's  Stat.  539) ; 
Forman,  77  (ante  103,  536). 

2.  That  the  fraud  proved  was  such  as  is  contemplated  by 
the  statute. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  by  the  indorsee  of  a  promissory  note, 
indorsed  before  the  day  of  payment,  against  the  maker.  The 
declaration  is  in  the  usual  form.  The  defendant  pleaded  the 
general  issue,  and  by  agreement  had  leave  to  give  any  special 
matter  in  evidence,  under  the  plea,  which  would  amount  to  a 
bar  to  the  action.  It  appears  that  a  judgment  was  rendered 
on  a  general  verdict  for  the  defendant. 

From  the  bill  of  exceptions  (which  makes  by  reference  to 
it,  an  affidavit  of  the  plaintiff's  counsel,  a  part  thereof)  it  ap- 
pears that  it  was  proved  on  the  trial,  that  the  note 
[*586]  was  given  as  a  part  *consideration  for  the  payment 
of  a  tract  of  land  purchased  of  the  indorser  of  the 
note,  by  the  maker  ;  and  that  a  false  statement  had  been  made 
by  the  indorser  to  the  maker  of  the  note,  (who  is  defendant 
here)  as  to  the  quantity  of  plowed  land  contained  in  the 
tract;  and  that  he  had  also  suppressed  the  knowledge  from 
the  maker,  that  a  tenant  on  the  land  had  a  lease  of  a  part 
thereof;  and  the  defendant  had  to  pay  the  tenant  seventy  -five 
dollars  to  leave  the  premises.  That  no  evidenc?  was  ad- 
duced on.the  trial  tending  to  show  that  the  plaint  ff  had  at  the 
time  of  the  indorsement  and  transfer  of  the  note,  any  knowl- 
edge of  the  consideration  for  which  the  note  was  given,  or 
the  circumstances  under  which  it  was  made.  Other  facts,  of 
minor  importance,  are  stated,  which  it  is  not  necessary  to  re- 
capitulate. The  plaintiff  moved  for  a  new  trial,  which  the 
Circuit  Court  refused. 

The  assignment  of  errors  questions  the  correctness  of  the 
decision  of  the  Circuit  Court  in  refusing  to  grant  the  new 
trial,  and  in  admitting  the  evidence  to  impeach  the  considera- 
ation  of  the  note  in  the  hands  of  the  holder,  without  showing 
notice  to  him  of  the  failure,  or  part  failure,  of  the  considera- 
tion thereof,  before  the  assignment,  or  showing  the  transfer 
of  the  note  after  it  became  due. 

We  think  the  evidence  was  improperly  admitted  to  the 
jury,  or  in  other  words,  that  the  evidence  formed  no  defense 
to  the  action. 

624 


DECEMBEK  TERM,  1839.  586 

Mulford  v.  Shepard. 

It  could  be  no  ground  of  defense  against  the  innocent 
aolder  of  a  negotiable  note  assigned  before  it  became  due ; 
nor  can  the  evidence  be  applied  as  matter  of  defense  under 
the  6th  section  of  the  act  relative  to  promissory  notes,  and 
other  instruments  in  writing,  made  assignable  by  the  act  of 
the  3d  January,  1827,  which  admits  of  a  defense  against 
the  assignee,  as  well  as  the  payee  of  an  assignable  note  or 
instrument  in  writing,  where  fraud  or  circumvention  is  used 
in  the  obtaining  the  making  or  executing  of  such  instrument. 

This  case  falls  directly  within  the  principles  of  the  rule 
laid  down  in  the  case  of  Woods  against  Hynes,  decided  in  this 
Court  at  the  December  term,  1833  (ante  103).  In  that  case 
the  defendant  pleaded  specially  that  the  note  was  obtained  by 
fraud  and  circumvention,  the  goods  for  which  it  was  given  be- 
ing less  in  quantity,  and  deficient  in  quality,  from  what  they 
were  represented  to  be  by  Wilkin,  the  payee  of  the  note.  In 
that  case,  we  said :  "  It  would  be  apparent  that  the  plea 
would  have  been  no  bar  to  the  action  on  the  note  in  the 
hands  of  an  innocent  indorsee  or  assignee,  as  has  been  repeat- 
edly adjudged;  nor  would  the  6th  section  of  the  act  above  re- 
ferred to,  give  the  right  to  interpose  such  a  defense,  where  there 
is  a  mere  deficiency  in  the  quality  or  quantity  of  the 
article  sold,  as  between  the  maker  and  the  *assignee.  [*587J 
The  section  declares  that  if  any  fraud  or  circumven- 
tion be  used  in  obtaining  the  making  or  executing  of  any  of 
the  instruments  described,  it  shall  be  void,  not  only  between 
the  maker  and  payee,  but  every  subsequent  holder.  We 
further  held  that  that  case  did  not  come  within  this  provision. 

The  fraud  charged  consisted  in  the  contract  itself,  not  in 
the  obtaining  the  making  of  the  note.  If  a  person  represent 
a  note  to  contain  a  particular  sum,  when  in  truth  the  amount 
is  much  greater,. and  obtain  an  execution  of  it,  there  would  be 
a  case  contemplated  by  the  statute,  and  the  note  would  be  void, 
not  only  between  the  maker  and  payee,  but  between  him  and 
every  subsequent  holder.  That,  however,  was  not  the  case 
under  consideration,  for  the  plea  admitted  a  valuable  consid- 
eration, but  denied  one  to  the  extent  of  the  face  of  the  note, 
because  of  the  deficiency  in  quantity  and  quality  of  the  arti- 
cles sold,  which  were  alleged  to  be  of  full  value.  It  would 
not  be  denied  but  that  the  plaintiff  was  entitled  to  recover  the 
value  of  the  goods,  even  if  he  had  stood  in  the  place  of  the  origi- 
nal payee,  but  being  an  innocent  holder  before  the  note  be- 
came due,  it  is  most  clear  that  the  matters  of  the  plea  would 
be  no  legal  defense  to  the  action. 

The  facts  in  this  case  are  of  precisely  similar  character. 
The  false  suggestion  as  to  the  value  and  improvement  of  the 

VOL.  I. -40  625 


587  SPRINGFIELD. 


Mulford  v.  Shepard. 


land,  with  the  suppression  of  the  fact  of  occupancy  and 
lease  of  a  part  of  the  premises  to  the  tenant,  could  only  oper- 
ate to  proportionately  reduce  the  value  of  the  tract  oi  land, 
but  would  not,  we  apprehend,  render  the  note  void  even  be- 
tween the  original  parties.  As  between  them,  in  an  action 
on  the  note,  it  might  perhaps  be  matter  of  defense  to  the 
extent  of  the  depreciation  ;  but  this  could  not  render  the  note 
void  between  the  maker  and  assignee.  It  will  be  thus  seen 
that  the  facts  disclosed,  do  not  amount  to  the  nature  of  the 
defense  contemplated  by  the  statute ;  and  the  misapplication 
of  the  facts  to  the  law  is,  we  think,  very  apparent. 

The  verdict  for  the  defendant  was  then  certainly  not  right 
or  just  under  the  law,  and  its  correction  is  demanded  by  every 
consideration  of  justice.  We  are  accordingly  of  opinion 
that  the  judgment  should  be  reversed  with  costs,  and  a  new 
trial  granted. 

The  cause  is  therefore  to  be  remanded  to  the  Circuit  Court 
of  "Will  county  with  instructions  to  award  a  venire  de  novo, 
and  to  proceed  in  the  same  in  conformity  to  this  opinion. 

Judgment  reversed. 

NOTE  BY  SCAMMON.  See  Woods  v.  Hynes,  ante  103;  Millers.  Howell. 
ante  499;  Miller  v.  Houcke  et  al.  501;  Vanlandingham  v.  Fellows  et  al., 
ante  233. 

To  an  action  on  a  promissory  note  the  defendant  pleaded  in  bar  as  to  part 
of  the  amount,  that  tbe  consideration  of  that  part  was  goods  sold  and  deliv- 
ered at  a  sound  price,  as  goods  and  salable  goods,  which  goods  were  dam- 
aged and  of  little  or  no  value.  Held,  that  the  plea — containing  no  aver- 
ment either  of  fraud  or  warranty — was  insufficient.  Phillips  et  al.  v.  Brad- 
bury et  al.,  SBlackf.  388. 

[*588]        *It  seems  that  a  note  given  for  a  pretended  title  is  not  void  in  the 
hands  of  an  indorsee.    Baker  v.  Arnold,  3  Caines,  279. 

In  an  action  by  the  indorsee  of  a  note,  not  void  in  its  creation,  and  in- 
dorsed before  it  became  due,  against  the  maker,  the  consideration  can  not 
be  inquired  into.  Baker  v.  Arnold,  3  Caines,  279;  Braman  v.  Hess,  13 
Johns.  52. 

The  want  or  illegality  of  consideration  of  a  note  transferred  before  due 
can  not  be  shown  in  an  action  by  a  bona  fide  holder  without  notice,  except 
where  the  note  is  declared  void  by  statute;  and  it  was  held,  in  an  action  by 
such  holder,  that  a  defense  could  not  be  set  up  that  the  note  was  delivered 
as  an  escrow.  Vallett  v.  Parker,  6  Wend.  615. 

A  note  given  on  the  purchase  of  real  estate  held  adversely  is  not  void  by 
statute.  Ibid. 

Where  a  note  is  adjudged  void  by  a  court  for  the  want,  failure  or  illegal- 
ity of  the  consideration,  it  is.  void  only  in  the  hands  of  the  original  owner, 
or  of  those  who  are  chargeable  with,  or  have  had  notice  of  the  consideration. 
Ibid. 

The  indorsement  of  a  note,  in  presumption  of  law,  is  cotemporaneous 
with  the  making  of  it,  or  at  all  events,  antecedent  to  its  becoming  due;  if 
the  defendant,  in  a  suit  by  the  indorsee,  wishes  to  avail  himself  of  payment 
to  the  original  holder,  it  is  incumbent  upon  him  to  show  the  indorsement  to 
have  been  subsequent  to  the  payment.  Pinckerton  v.  Bailey,  8  Wend.  GOO. 
See,  also,  Tyler  v.  Young  et  al.,  2  Scam. 

C26 


DECEMBER  TERM,  1839.  588 

Burlingame  et  al,  v.  Turner. 


RUFUS  P.  BURLINGAME,  JOHN  B.  BURLINGAME  and 
AQUILLA  WHEN,  appellants,  v.  JAMES  TURNER,  ap- 
pellee. 

Appeal  from  Peoria. 

PRACTICE. — Where  a  motion  is  made  in  the  Court  below  to  set  aside  an 
issue  _as  immaterial  the  fact  should  be  stated  in  a  bill  of  exceptions. 

It  is  not  the  duty  of  the  Court  to  order  a  continuance  on  an  affidavit  filed, 
unless  a  motion  is  made  for  such  continuance. 

It  is  not  the  duty  of  the  Circuit  Court,  of  its  own  motion,  to  set  aside  an 
immaterial  issue. 

A  motion  to  set  aside  an  immaterial  issue  must  be  made  in  the  Court 
where  the  verdict  is  rendered  if  the  party  wishes  to  raise  the  question  in  the 
Supreme  Court. 

Where  matters  of  law  and  fact  are  both  submitted  to  the  Court  for  trial, 
and  a  jury  waived,  it  is  competent  for  the  Court  after  having  found  the 
issues  for  the  plaintiff,  to  direct  the  clerk  to  assess  the  damages  on  a  promis- 
sory note. 

THIS  cause  was  heard  in  the  Court  below,  at  the.  April 
term,  1839,  the  Hon.  Daniel  Stone  presiding. 

C.  BALANCE  and  C.  WALKER,  for  the  appellants,  cited  the 
following  authorities : 

1  Com.  Dig.  40,  and  authorities  there  cited  ;  1  Chit.  Plead. 
547,  548,  and  authorities  there  cited  ;  R.  L.  349,  483 ;  Gale's 
Stat.  343,  526. 

WM.  FKISBY  and  GEO.  T.  METCALF,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court: 
This  was  an  action  of  assumpsit  commenced  in  the  Peoria 
Circuit  Court,  in  favor  of  Turner,  against  Burlingame, 
*Burlingame  and  Wren.     The  declaration  is  in  the     [*589] 
usual  form,  on  a  promissory  note  made   by   the   de- 
fendants below  to  one  Isaac  Cushman.  and  by  him  before  the 
note  became  due,  indorsed  to  Turner.    The  defendants  pleaded 
non-assumpsit.  on  which  issue  was  joined.     They  also  pleaded 
usury.     To  the  plea  of  usury  the  plaintiff   below  demurred, 
and  the  demurrer  was  sustained  by  the  Couit.      The  defend- 
ants then  obtained  leave  to  ;,mend  their  second  plea,  which 
being  done,  issue  was  thereupon  joined  by  the  plaintiff  below. 
It  then  appears  from  the  record  that  an  affidavit  was  filed  in 
the  cause,  as  if  to  found  an  application  to  the  Court  for  a  con- 

CITED  :    Approval  by  court  of  act  of  officer.    3  Scam.  35. 

627 


589  SPRINGFIELD. 


Burlingame  et  al.  «.  Turner. 


tinuance  of  the  case,  to  enable  the  defendants  to  procure  tes- 
timony to  support  the  issue  of  usury.  But  it  nowhere  ap- 
pears that  any  motion  was  made  for  a  continuance,  and  of 
course  no  such  motion  was  overruled. 

The  record  then  states  that  on  the  day  of  filing  said  affida- 
vit, the  parties  agreed  that  both  matters  of  law  and  fact  aris- 
ing in  the  cause,  should  be  tried  by  the  Court,  and  after  hear- 
ing the  evidence  of  both  parties  respectively,  and  arguments 
of  counsel,  and  the  Court  being  fully  advised  therein,  found 
the  issues  for  the  plaintiff,  and  ordered  the  clerk  to  assess  the 
plaintiff's  damages,  which  were  accordingly  assessed ;  and 
thereupon  judgment  was  rendered  for  the  amount  so  assessed. 

The  following  errors  are  assigned  to  reverse  this  judgment, 
to  wit:  1.  The  issue  joined  was  immaterial;  2.  The  Court 
erred  in  not  granting  a  continuance  ;  3.  The  Court  erred  in 
referring  the  assessment  of  damages  to  the  clerk. 

It  does  not  appear  from  the  record  that  any  question  was 
ever  raised  in  the  Circuit  Court,  as  to  the  point  whether  the 
issue  joined  on  the  defendants'  amended  plea  of  usury,  was 
immaterial.  Had  such  a  point  been  made  on  the  trial,  it  ought 
to  have  appeared  by  the  bill  of  exceptions.  For  anything 
that  appears  on  the  record,  the  Circuit  Court  may  have  treated 
the  issue  as  immaterial.  It,  however,  was  not  the  duty  of  the 
Circuit  Court,  of  its  own  motion,  to  have  set  aside  the  issue. 

The  second  assignment  of  error  is  also  without  foundation. 
The  Court  could  not,  without  motion,  have  granted  a  continu- 
ance. 

It  was  clearly  competent  for  the  Court,  after  having  decided 
the  issues  in  favor  of  the  plaintiff,  to  require  the  clerk  to  assess 
the  damages.  The  action  being  on  a  note  for  money,  the  only 
duty  required  of  the  clerk  was  to  calculate  the  interest — a 
matter  merely  of  computation.  (Rust  v.  Froihingham,^  Breese, 
258.) 

The  judgment  of  the  Circuit  Court  is  affirmed  with  costs. 

Judgment  affirmed. 


DECEMBER  TERM,  1839.  590 

Maxcy  v.  Padfield. 


*  ALBERT    G.    MAXCY,  plaintiff   in    error,  v.     [*590] 
WILLIAM  PADFIELD,  defendant  in  error. 

Error  to  Clinton, 

JUSTICE  COURT — JUDGMENT  AGAINST  DEFENDANT  NOT  SERVED,  ERROR. 
— A  justice  of  the  peace  has  no  authority  to  render  a  judgment  against  any 
defendant  who  is  not  served  with  process,  although  one  of  the  defendants  is 
regularly  served. 

APPEAL — AMENDMENT. — The  Circuit  Court  can  not  amend  the  papers  on 
appeal  from  the  judgment  of  a  justice  of  the  peace,  by  striking  out  the 
name  of  one  of  the  defendants  in  the  Court  below. 

THIS  was  an  action  originally  commenced  by  William  Pad- 
field  against  Samuel  McCullongh  and  A.  G.  Maxcy,  before 
"William  Johnson,  a  justice  of  the  peace  of  Clinton  county, 
upon  a  promissory  note  made  by  Samuel  McCullough  to  An- 
derson W.  Petty,  and  by  said  Petty  indorsed  to  Samuel  G. 
Smith,  and  by  said  Smith  indorsed  to  A.  G.  Maxcy,  and  by 
said  Maxcy  indorsed  to  the  defendant  in  error. 

The  summons  was  issued  against  McCullough  and  Maxcy, 
and  returned  executed  upon  Maxcy  only. 

On  the  day  set  for  the  trial  of  the  action,  neither  of  the  de- 
fendants appeared  and  judgment  was  rendered  against  them 
by  default.  From  this  judgment  Maxcy  appealed  to  the  Cir- 
cuit Court  of  Clinton  county. 

At  the  next  term  of  the  Circuit  Court,  the  Hon.  Sidney 
Breese  presiding,  Maxcy,  by  Cowles,  his  attorney,  moved  the 
Court  to  dismiss  the  cause  and  reverse  the  judgment  of  the 
justice.  The  Circuit  Court  overruled  said  motion,  and  on 
motion  of  the  plaintiff,  by  Reynolds,  his  attorney,  leave  was 
granted  to  amend  the  papers  by  striking  out  the  name  of 
Samuel  McCullough. 

Thereupon  a  jury  was  called,  and  a  verdict  rendered  for  the 
plaintiff,  and  judgment  entered  upon  said  verdict.  From  this 
judgment  Maxcy  prosecuted  a  writ  of  error  to  this  Court. 

A.  COWLES  and  BENJAMIN  BOND,  for  the  plaintiff  in  error, 
relied  upon  the  following  points  and  authorities  : 


"The  Court  below  had  no  power  to  amend  the  papers— 
1 .     Because  it  in  effect  created  a  new  action,  which  was  i 

.     5  Job 
's  Stat.  §  7, 


,  not 

authorized  by  the  statute    allowing  amendments.     5  Johns. 
160;  Kimmel  v.  Shultz  et  al.,  Breese,  128;  Gale's 
404,  §  35,  410 ;  R.  L.  389,  396. 


CITED  :  Amendment.    11  111.  689  ;  4  Bradw.  82. 

029 


590  SPRINGFIELD. 


Maxcy  t>.  Padfield. 


2.     The  judgment  before  the  justice  being  by  default,  and 

the  defense  not  of  a  dilatory  character,  it  was  competent  for 

the  appellant  to  interpose  the  defense  in  the  Circuit  Court 

Breese,  96  ;  5  Johns.  160  ;  Forman,  85, 199  (ante  249). 

[*591]        *3.  The  cause,  by  appeal  of  one  of  the  defendants 

into  the  Circuit  Court,  will  be  held  as  bringing  both 

defendants  into  the  Circuit  Court,  no  motion  being  made  to 

dismiss  the  appeal  for  that  reason.     The   plaintiff  below  so 

considered  it  by  moving  to  strike  out  one  of  the  defendants. 

LYMAN  TKUMSULL  and  JOSEPH  GILLESPIB  for  the  defend- 
ant in  error,  relied  upon  the  following  points  and  author- 
ities : 

1.  Appeals  from  justices  of  the  peace  being  taken  up  de 
now  in  the  Circuit  Court,  and  McCullough  not  having  joined 
in  taking  the  appeal,  he  was  no  party  to  the  suit  in  the  Cir- 
cuit Court.     Mitcheltree  v.  Sparks,  Forman,  166  (ante  198); 
Tindall  v.  Meeker,  Forman  (97  ante  137);  Dedman  v.  Ear- 
ber,  Forman  (202  ante  254). 

2.  If  McCullongh  was  a  party,  it  was  competent  for  the 
Circuit  Court  under  the  statute  allowing  such  amendments  tp 
be  made  as  are  necessary  to  a  fair  trial  of  the  cause  upon  its 
merits,  to  permit  the  name  of  McCullough  to  be  stricken  out. 
Con-ley  v.  Good,  Breese,  96 ;  R.  L.  396,  (Gale's  Stat.  410,) 
§  35;  Acts  of  1839,  291. 

3.  To  warrant  the  reversal  of  the  opinion  of  the  inferior 
Court,  in  refusing  to  grant  a  continuance,  and  upon  a  point  in 
relation  to  which  it  has  the  best  opportunity,  of  forming  a  cor- 
rect opinion,  the  cause  of  error  should  be  clearly  made  out. 
Smith  et  al.  v.  Schults,  ante  490. 

SMITH,  Justice,  delivered  the  opinion  of  the  Court : 
The  assignment  of  errors  questions  the  regularity  and 
power  of  the  Court  to  strike  out  the  name  of  one  of  the  de- 
fendants in  the  action  before  the  justice  of  the  peace.  The 
original  summons  was  the  foundation  of  the  action.  The 
plaintiff  in  that  action  elected  to  misjoin  parties  who,  upon  no 
legal  principles,  could  be  joined  in  the  same  action,  and  the 
judgment  was  manifestly  erroneous,  as  well  for  the  misjoin- 
der,  as  for  rendering  judgment  against  McCullough,  who  had 
not  been  served  with  process.  We  can  not  doubt  that  the 
Court  had  no  power  to  abate  the  suit  as  to  one  of  the  defend- 
ants, at  common  law,  on  the  plaintiff's  motion,  and  we  do  not 
conceive  that  the  statutes  allowing  of  amendments  relative  to 
proceedings  before  justices  of  the  peace,  confer  the  power. 
The  effect  of  the  amendment  is  to  change  the  character  of  the 

630 


DECEMBEK  TEEM,  1839.  591 

Kettelle  v.  Wardell. 

action,  as  to  parties,  and  virtually  to  constitute  a  new  action. 
This  surely  could  never  have  been  the  intention  of  the  legisla- 
ture, in  the  several  acts  allowing  amendments  in  the  Circuit 
Courts,  to  proceedings  had  before  justices  of  the  peace. 

The  defendants  might  avail  themselves  of  this  misjoinder, 
but  surely  the  plaintiff  in  the  action  before  the  justice,  could 
not   discontinue  his   cause   as  to  one  of  them,  and  hold  the 
other  liable.     The  cases  cited  to  support  the  power 
to  thus  amend  process,  we  *conceive,  have  no  bear-     [*592] 
ing  on  the  point  before  the  Court,  and  do  not  coun- 
tenance the  amendment. 

The  judgment  is  reversed,  as  well  in  regard  to  the  proceed- 
ings and  judgment  before  the  justice,  as  in  the  Circuit  Court 
with  costs.  Judgment  reversed. 


CHAKLES  KETTELLE,  appellant,  v.  EGBERT  WARDELL, 

appellee. 

Appeal  from  Peoria. 

The  security  for  costs  required  of  non-residents,  need  not  be  in  the  pre- 
cise words  or  form  given  in  the  statute. 
A  security  for  costs  may  be  signed  in  the  name  of  a  firm. 

THIS  was  an  action  of  assumpsit  commenced  by  the  appel- 
lee in  the  Circuit  Court  of  .Peoria  county,  against  the  appel- 
lant. A  motion  was  made  in  the  Court  below,  at  the  May 
term,  1838,  the  Hon.  Dan.  Stone  presiding,  to  dismiss  the 
cause  for  want  of  a  security  for  costs.  The  motion  was  over- 
ruled and  the  cause  submitted  to  the  Court,  and  judgment  ren- 
dered against  the  appellant  for  $202.16  damages,  together 
with  costs.  From  this  judgment  an  appeal  was  taken  to  this 
Court. 

The  form  of  the  instrument  filed  as  a  security  for  costs,  as 
also  so  much  of  the  case  as  is  necessary  to  be  stated  in  order 
to  understand  the  points  raised,  appear  in  the  opinion  of  the 
Court. 

The  errors  assigned  are  the  following : 

"  1.  There  is  no  legal  bond  for  costs,  the  plaintiff  being  a 
non-resident. 

2.  The  instrument  filed  and  purporting  to  be   a  bond  for 
costs,  is  not  in  the  form  prescribed  by  statute. 

3.  The  instrument  filed  does  not  set  forth  the  title  of  the 
Court  nor  the  parties  in  the  cause. 

CITED  :    Security  for  costs.    3  Scam.  185. 

6ol 


502  SPEINGFIELD. 


Kettelle  r.  Wardell. 


4.  The  instrument  is  in  the  plural  and  not  in  the  singular 
number,  as  prescribed  by  statute. 

5.  The  instrument  purports  to  be  signed  by  Davis  &  De 
Wolf,  the  name  assumed  by  a  firm  and  not  by  a  single  respon- 
sible person,  as  required  by  statute. 

6.  The  obligors  do  not  enter  themselves  security,  etc.,  but 
only  as  security,  etc. 

7.  The  obligors  do  not  acknowledge  themselves  bound  to  pay, 
or  cause  to  be  paid,  all  costs,  etc.,  as  prescribed  by  statute." 

[*593]         *II.  P.  JOHNSON,  for  the  appellant,  cited  R.  L.  title 
Costs,  165-6;  Gale's   Stat.  195;  Warnockv.  Russell, 
Printed  Opinions,  292,  ante  383. 

G.  T.  M.  DAVIS,  for  the  appellee. 

LOCKWOOD,  Justice,  delivered  the  opinion  of  the  Court : 

This  was  an  action  of  assumpsit  commenced  by  Wardell 
against  Kettelle,  in  the  Pebria  Circuit  Court.  Previous  to 
the  issuing  the  summons  from  the  Court  below,  the  plaintiff 
in  that  Court  filed  in  the  clerk's  office,  a  precipe  and  instru- 
ment of  writing  to  secure  the  costs,  as  follows,  to  wit : 

"State  of  Illinois,  Peoria  county,  sc. 

Robert    Wardell  \  Action,  Trespass  on  the 

v.  >      case  on  promises. 

Charles  Kettelle. )       Damages,  $500. 

The  clerk  of  the  Circuit  Court  in  and  for  the  county  of 
Peoria,  will  please  issue  a  summons  in  this  entitled  cause,  di- 
rected to  the  sheriff  of  said  county  of  Peoria,  and  returnable 
at  the  next  term  of  said  Court.  t)ated  Alton,  October  llth, 
1837.  DAVIS  &  DE  WOLF, 

1  Att'ys  for  Pl'ff. 

Same  v.  Same. 

We  do  hereby  enter  ourselves  as  security  for  costs  in  this  en- 
titled cause,  and  acknowledge  ourselves  bound  to  pay  all  costs 
that  may  accrue  either  to  the  opposite  party,  or  to  any  of  the 
officers  of  this  Court,  in  pursuance  of  the  laws  of  this  State. 

DAVIS  &  DE  WOLF." 

At  the  next  term  after  the  commencement  of  the  suit,  the 
defendant  below  moved  the  Court  to  dismiss  the  cause  for  want 
of  bond  for  costs,  which  motion  was  overruled.  The  assign- 
ment of  errors  questions  the  correctness  of  this  decision. 

The  objections  made  here,  are  the  same  that  were  made  to  the 
security  filed  in  the  case  of  Linn  v.  Buckingham  and  Ilunt- 
ington,  decided  in  December  term,  1838,  ante  451.  This 
Court  then  decided  that  an  instrument  entirely  similar  to  the 

632 


DECEMBEK  TEEM,  1839.  593 

Simpson  v.  Upclegraff. 

one  filed  in  this  case,  was  a  sufficient  compliance  with  the  stat- 
ute requiring  non-resident  plaintiffs  to  file  security  for  costs 
before   commencing  suit.     The   Circuit  Court   consequently 
decided  correctly  in  refusing  to  dismiss  the  suit. 
The  judgment  is  affirmed  with  costs. 

Judgment  affirmed. 


*FRANCIS  W.  SIMPSON,  plaintiff  in  error,  v.     [*594] 
JOSEPH  P.  UPDEGRAFF  and  WILLIAM  H. 
RANDOLPH,  defendants  in  error. 

Error  to  McDonough. 

A  justice  of  the  peace  has  jurisdiction  of  a  suit  upon  a  note  for  $100,  where 
the  plaintiff  does  not  claim  interest. 

THIS  was  an  action  instituted  before  a  justice  of  the  peace 
of  McDonough  county,  on  the  22d  day  of  October,  1838,  upon 
the  following  promissory  note  : 

"  $100.00.  On  or  before  the  twentieth  day  of  October,  we 
or  either  of  us  promise  to  pay  John  D.  Walker,  or  bearer,  one 
hundred  dollars,  for  value  received.  Macomb,  April  23d, 
1838.  J.  P.  UPDEGRAFF.  [L.S.] 

WM.  H.  KANDOLPH.         [L.S.]  " 
On  the  back  of  which  note  was  written : 

"For  value  received  I  assign  the  within  note  to  F.  W.  Simp- 
son, this  4th  October,  1838. 

JOHN  D.  WALKER." 

The  justice  rendered  judgment  for  the  plaintiff,  and  the 
defendants  appealed  to  the  Circuit  Court.  At  the  October 
term,  1839,  the  Hon.  Peter  Lott  presiding,  the  cause  was  called 
for  trial,  and  the  plaintiff  read  in  evidence  the  note  and  in- 
dorsement, and  thereupon  the  defendants  moved  to  dismiss 
the  suit  for  want  of  jurisdiction  in  the  justice  of  the  peace, 
which  motion  was  sustained  by  the  Court,  the  cause  dismissed, 
and  a  judgment  for  costs  rendered  against  the  plaintiff.  The 
plaintiff  excepted  to  the  opinion  of  the  Court,  and  embodied 
the  facts  in  a  bill  of  exceptions,  which  was  signed  and  sealed  by 
the  judge,  and  the  cause  brought  to  this  Court  by  writ  of  error. 

A.  WILLIAMS  and  S.  H.  LITTLE,  for  the  plaintiff  in  error. 
CITED:    Jurisdiction  of  justice.   24  111.  114;  2  Gilin.  392. 

633 


594  SPRINGFIELD. 


Balance  v.  Frisby  et  al. 


O.  H.  BKOWNING,  for  the  defendants  in  error. 

BROWNE,  Justice,  delivered  the  opinion  of  the  Court : 
This  was  a  suit  by  the  plaintiff  against  the  defendants,  be- 
fore a  justice  of  the  peace  of  McDonough  county,  on  a  promis- 
sory note  for  the  payment  of  one  hundred  dollars.  The 
justice  of  the  peace  who  tried  the  cause  gave  judgment  for 
the  plaintiffs  for  the  sum  of  one  hundred  dollars  and  costs. 
Updegraff  and  Randolph  appealed  from  the  decision  of  the 
justice  to  the  Circuit  Court  of  McDonough  county.  "When 
the  cause  came  on  to  be  tried,  the  defendants,  Upde- 
[*595]  graff  and  Randolph,  by  their  attorneys,  moved  *the 
Court  to  dismiss  the  appeal,  because  the  justice  of  the 
peace  had  no  jurisdiction  of  the  cause.  The  motion  was  sus- 
tained by  the  Court,  and  the  cause  dismissed.  To  reverse  the 
decision  of  the  Circuit  Court,  this  writ  of  error  is  brought. 
The  statute  giving  jurisdiction  to  justices,  page  402,  Sec.  1, 
Scammon's  Revised  Laws,  (Gale's  Stat.)  provides ;  u  That  jus- 
tices of  the  peace  in  this  State  shall  have  jurisdiction  within 
their  respective  counties,  to  hear  and  determine  all  civil 
suits  for  any  debts  or  demands  of  the  following  description, 
viz. :  for  any  debt  claimed  to  be  due  on  a  promissory  note,  etc., 
where  the  whole  amount,  etc.,  shall  not  exceed  one  hundred 
dollars.  It  seems  clear  that  the  justice  of  the  peace  had  juris- 
diction. It  comes  within  the  letter  and  spirit  of  the  law 
conferring  jurisdiction  on  justices  of  the  peace.  For  these 
reasons,  the  judgment  of  the  Circuit  Court  of  McDonough 
county  must  be  reversed  with  costs ;  and  as  the  sum  claimed 
by  the  plaintiff,  is  certain,  judgment  is  rendered  here  for  one 
hundred  dollars  with  costs. 

Judgment  reversed^  and  judgment  rendered  in  this  Court. 


CHARLES  BALANCE,  appellant,  v.  WILLIAM  FRISBY  and 
GEORGE  T.  METCALF,  appellees. 

Appeal  from  Peoria. 

The  prayer  for  an  appeal  from  the  Circuit  to  the  Supreme  Court,  may  be 
made  at  any  time  during  the  term  in  which  the  judgment  is  rendered. 

THE  appellees  moved  the  Court  to  dismiss  this  appeal,  for 
the  reason  that  "  the  appeal  was  not  prayed  at  the  time  of 
rendering  the  judgment  in  the  Court  below,  but  several  days 
afterward." 

634 


DECEMBER  TERM,  1839.  595 

Emerson  v.  Clark. 

The  record  shows  that  the  judgment  of  the  Court  below 
was  rendered  on  the  16th  day  of  October,  1839  ;  that  the  ap- 
pellant moved  for  a  new  trial  on  the  23d  of  the  same  month, 
which  was  overruled  on  the  same  day  ;  and  that  on  the  26th 
of  the  same  month  the  appeal  was  prayed  and  granted.  All 
these  proceedings  were  had  at  the  October  term  of  the  Court 
below. 

W.  FBISBY,  for  the  appellees. 
C.  WALKEK,  for  the  appellant. 

Per  Curiam: 

The  appeal  was  prayed  in  due  season.  The  practice  has 
been  uniformly  to  permit  appeals  to  be  pra}7ed  for  at  any  time 
during  the  term  of  the  Court  in  which  the  judgment  is 
rendered. 

The  motion  is  overruled. 

Motion  overruled. 


*JOSEPH  EMERSON,  appellant,  v.  GEORGE  W.     [*596] 
CLARK,  appellee. 

Appeal  from  Scott. 

An  appeal  from  the  Circuit  to  the  Supreme  Court,  where  the  iudgment  is 
final,  and  amounts  to  $20  exclusive  of  costs,  or  relates  to  a  franchise  or  free- 
hold, is  a  matter  of  right. 

THIS  was  a  motion  to  dismiss  the  appeal  because  the  same 
was  granted  upon  condition  that  the  defendant  should  verify 
by  his  own  affidavit,  within  twenty  days,  two  papers  produced 
on  the  trial  by  the  parties,  but  which  were  not  in  Court  when 
the  bill  of  exceptions  was  made  up.  Upon  such  verification, 
gaid  papers  were  to  be  included  in  the  bill  of  exceptions. 

WM.  BKOWN,  for  the  appellee. 
JOSIAH  LAMBOKN,  for  the  appellant. 

Per  Curiam  : 

The  statute  gives  an  appeal  in  all  cases  where  the  judgment 
appealed  from  is  final,  and  amounts  to  the  sum  of  twenty  dol- 
lars, exclusive  of  costs,  or  relates  to  a  franchise  or  freehold. 

186 


590  SPKINGFIELD. 


Emerson  v.  Clark. 


The  party  had  a  right  to  his  appeal  upon  giving  bond  and  se- 
curity, without  any  other  conditions.  The  Court,  upon  this 
motion,  will  not  investigate  the  propriety  of  the  Circuit 
Court's  permitting  the  papers  to  be  verified  by  the  affidavit  of 
the  party. 

This  motion  is  overruled. 

Motion  overruled. 

636 


INDEX. 


ABATEMENT. 


1.  Objections  in  the  nature  of  a  plea  in  abatement,  must  be  made  in  the 

first  instance.  It  is  too  late  to  make  them  on  appeal.  Pearce  et  al.  v. 
Swan,  266 

2.  The  judgment  for  the  defendant  on  a  plea  in  abatement,  whether  it  be  an 

issue  in  fact  or  in  law,  is  that  the  writ  or  bill  be  quashed;  or  if  a  tem- 
porary disability  or  privilege  be  pleaded,  that  the  plaint  remain  without 
day,  until,  etc.  McKinstry  v.  Pennoyer  et  al.,  319 

3.  On  an  issue  in  fact,  the  defendant  is  entitled  to  costs,  but  not  on  an  issue 

inlaw^   Ibid.,  319 

4.  Infancy  is  not  a  dilatory  plea.     Greer  v.  Wheeler,  554 

5.  Where  a  contract  is  joint,  and  only  one  of  the  makers  are  sued,  the  non- 

joinder of  the  other  parties  can  be  taken  advantage  of  only  by  plea  in 
abatement.  Lurton  v.  Gilliam  et  al.,  577 

ACCESSORY. 
See  TRESPASS,  5. 

ACTION. 

1.  A  scire  facias  to  foreclose  a  mortgage,  is  proceeding  in  rent,  and  not 

an  action  in  the  ordinary  acceptation  of  that  term.  Menard  v. 
Marks,  25 

2.  The  issuing  of  the  summons,  is  the  commencement  of  a  suit.     Feazle  v. 

Simpson  et  al.,  30 

3.  Where  by  a  contract  Gr.  and  K.  were  to  build  a  mill  f or  C. ,  and  four  months 

after  the  contract  should  be  completed,  C.  was  to  pay  them  $150:  Held 
that  they  could  not  sustain  an  action  for  the  $150  until  the  expiration  of 
four  months  from  the  time  the  services  were  offered  to  be  performed, 
although  they  were  prevented  from  completing  the  contract  by  the  con- 
duct of  C.  Crocker  v.  Goodsell  et  al.,  ^  107 

4.  Debt  is  the  proper  action  to  bring  for  a  violation  of  an  ordinance  of  an 

incorporated  town.    Israel  et  al.  v.  Town  of  Jacksonville,  290 

he  law  is  well  settled,  that  where  there  is  a  written  contract  to  perform 
a  particular  piece  of  work,  and  the  workman  performs  a  part  of  the 
work,  and  is  prevented  from  finishing  it  by  the  other  party,  that  he  may 
treat  the  contract  as  rescinded,  and  recover  the  value  of  his  labor  in  an 
action  of  assumpsit.  Butts  v.  Huntley,  410 

5.  A  constable  who  has  collected  an  execution  issued  upon  a  judgment  re- 

covered in  a  suit  by  attachment,  and  paid  the  money  over  upon  the  or- 
der of  the  plaintiff  in  the  attachment,  is  not  liable  to  an  action  by  the 
attachment  debtor — after  the  reversal  of  such  judgment  on  appeal — for 
the  money  so  collected  and  paid  over.  Nor  is  he  liable  to  a  garnishee 
of  whom  he  has  collected  money  on  such  execution.  Elliot  v.  Sneed, 

517 
7.  Where  a  constable  collected  money  upon  a  judgment  obtained  by  W. 

637 


598  INDEX. 

against  R.,  before  a  justice  of  the  peace,  and  paid  the  same  to  G.,  upon 
the  order  of  E.,  to  whom  the  judgment  was  assigned;  and  afterward 
the  judgment  was  reversed  on  appeal,  and  the  constable  paid  the  money 
back  which  he  had  collected  of  R. :  Held,  that  E.,  the  assignee  of  the 
judgment,  was  not  liable  to  refund  the  money  to  the  constable,  W.  alone 
being  liable.  Ibid.,  ^  517 

8.  Where  a  constable  collected  money  on  an  execution  issued  upon  a  judg- 

ment which  was  afterward  reversed,  and  paid  the  money  over,  upon 
the  order  of  the  plaintiff;  and  after  the  reversal  of  the  judgment,  the 
constable  paid  back  the  money  to  the  defendant:  Held,  that  the  consta- 
ble might  maintain  an  action  against  the  plaintiff,  for  money  paid  to 
his  use.  Ibid.,  517 

9.  The  bringing  of  a  suit  to  recover  back  the  consideration  money,  after 

a  breach  of  the  contract,  is  equivalent  to  an  express  disaffirmance  of  the 
contract;  and  to  be  regarded  as  sufficient  evidence  of  the  determination 
of  the  party  to  treat  it  as  rescinded,  as  the  consideration  can  only  be  re- 
coverea  back  on  the  ground  of  a  disaffirmance  of  the  contract.  Her- 
rington  v.  Hubbard,  569 

10.  A  party  can  not  proceed  to  recover  in  an  action  at  law,  the  consideration 
paid  on  a  contract,  and  proceed  concurrently  in  a  court  of  equity,  for  a 
specific  performance  of  the  same  contract;  because  a  recovery  at  law  is 
based  on  an  actual  or  constructive  disaffirmance  of  the  contract;  and  a 
party  can  not  obtain  a  decree  for  a  specific  execution  of  a  contract,  by  a 
judgment  at  law,  pronounced  disaffirmed.    Ibid.,  569 

11.  Semble,  That  an  action  of  covenant,  to  recover  damages  for  the  non- 
performance  of  a  contract,  may  be  proceeded  in  concurrently  with  pro- 
ceedings in  chancery,  to  compel  a  specific  performance.    Ibid.,         569 

See  ADMINISTRATOR;  BANK,  3;  CONSTABLE;  FEES;  IMPROVEMENTS;  MA- 
LICIOUS PROSECUTION ;  MISCHIEVOUS  ANIMALS;  OBSTRUCTION;  SCIRE 
FACIAS;  SLANDER;  TRESPASS. 

ADMINISTRATOR  AND  EXECUTOR. 

1.  A  judgment  for  costs  can  not  be  rendered  against  an  administrator  in  his 

personal  character.  Church  et  al.  v.  Jewett  et  al.,  55;  Bailey  v.  Camp- 
bell, 110 

2.  Courts  of  Probate  have  power  to  revoke  letters  of  administration  obtained 

through  fraud.     Marston  v.  Wilcox,  60 

3.  The  right  to  inquire  whether  a  fraud  has  been  practiced,  is  a  necessary  in- 

cident to  the  power  given  by  statute,  "  to  hear  and  determine  the  right 
of  administration. "  Ibid.,  60 

4.  Under  the  general  issue,  in  an  action  by  an  administrator,  proof  that  the 

plaintiff  had  received  letters  of  administration  upon  the  estate  of  his  in- 
testate, is  unnecessary.  The  fact  whether  he  was  or  was  not  an  admin- 
istrator, is  not  put  in  issue.  McKinley  v.  Braden,  64 

5.  If  an  administrator  act  honestly  and  prudently,  though  there  be  a  less 

to,  or  a  total  diminution  of  the  intestate's  estate,  he  will  not  be  liable. 
Where  M.,  an  administrator  in  Illinois,  employed  an  agent  in  Virginia, 
to  collect  a  demand  due  to  his  intestate's  estate  from  a  resident  in  Vir- 
ginia, 'and  the  agent  collected  the  money  and  appropriated  the  same 
to  his  own  use,  but  never  accounted  for  it  to  M.:  Held  that  as  M. 
had  been  guilty  of  no  misconduct,  and  had  acted  in  good  faith,  he  was 
not  liable  for  the  loss  of  the  money.  Christy  et  al.  v.  McBride,  75 
Qucere:  Is  an  administrator  in  this  State  bound  to  collect  debts  due  his  in- 
testate's estate,  from  residents  of  other  States?  Ibid.,  75 

6.  For  a  breach  in  the  condition  of  the  bond  of  an  executor,  an  action  may 

be  maintained  against  any  one  or  more  of  the  obligors  in  such  bond. 
The  common  law  in  this  particular  is  changed  by  statute.  The  People 
v.  Miller  et  al.,  83 

7.  It  is  not  necessary  to  establish  a  devastavit  previous  to  instituting  a  suit 

on  an  executor's  bond.  The  statute  has  dispensed  with  the  proof  of  a  de- 
vastavit. Ibid.,  83 

138 


INDEX.  599 

8.  The  Statute  of  Wills  gives  an  action  against  the  obligors  in  an  executor's 

bond,  in  cases  of  neglect  or  refusal  to  comply  with  any  of  the  provisions 
of  the  law  governing  the  conduct  of  the  executor,  as  also  in  cases  where 
any  one  or  more  of  the  covenants  in  his  bond  are  violated.  Ibid.,  83 

9.  A  Court  of  Probate  has  no  power  to  render  a  judgment  in  favor  of  heirs 

or  devisees,  against  an  executor  or  administrator  for  failing  or  refusing 
to  pay  over  to  such  heirs  or  devisees,  their  distributive  portions  of  the 
estate  of  the  deceased.  Piggott  v.  Ramey  et  al.,  145 

10.  If  an  executor  or  administrator  fail  or  refuse  to  comply  with  the  order 
of  the  Court  of  Probate,  requiring  him  to  make  such  payment,  the  rem- 
edy is  by  attachment  for  contempt  of  court.    Ibid.,  145 

11.  An  administrator  is  not  bound  upon  the  exhibition  by  a»  creditor  of  his 
claim  against  the  estate  of  the  intestate,  to  set  off  any  debt  or  demand 
such  estate  may  have  against  such  creditor;  and  his  failing  to  do  so,  will 
not  bar  such  debt  or  demand.     Morton  v.  Bailey  et  al.,  213 

12.  A  justice  of  the  peace  has  no  jurisdiction  of  a  suit  for  a  demand  exceed- 
ing twenty  dollars,  in  which  an  administrator  is  a  party,  except  for  debts 
due  for  property  purchased  at  an  administrator's  sale.    Leigh  v.  Mason 
et  al.,  249 

13.  The  act  of  1827  did  not,  like  the  act  of  1829,  require  that  application  to 
sell  real  estate  by  administrators,  should  be  made  to  the  Circuit  Court 
of  the  county    in  which   administration  was    granted.    Under  that, 
act,  an  application  to  the  Circuit  Court  of  the  county  in  which  the  real 
estate  was  situated,  was  sufficient.     Smith  et  al.  v.  Hileman,  323 

14.  §  6  of  the  act  of  1827,  required  that  an  administrator's  deed  of  real  es- 
tate, should  set  forth  "  at  large,  the  order  of  the  Circuit  Court  directing 
the  sale. ' '    A  recital  of  the  substance  of  such  order,  is  not  a  compliance 
with  the  act.     Ibid.,  328 

15.  The  Circuit  Court  has  no  power  to  direct  a  sale  of  real  estate  by  an  ad- 
ministrator, to  be  made  for  any  other  funds  than  the   legal  currency   of 
the  State.    The  direction  to  take  payment  in  notes  of  the  State  Bank  of 
Illinois  was  not  warranted  by  law.     But  such  direction  did  not  render 
the  proceedings  void,  but  voidable  only.     Such  a  direction  does  not  ren- 
der a  record  of  an  order  of  sale  inadmissible  as  evidence.    Ibid.,      323 

16.  An  administrator's  deed  under  the  act  of   1827,  which  does  not  contain 
the  order  "  at  large,"  for  the  sale  of  the  premises,  is  insufficient,  and 
can  not  be  received  as  evidence  in  an  action  of  ejectment,  to  support  the 
title  of  the  grantee  in  such  deed.    Ibid.,  323 

ADMISSIONS. 

1.  The  admission  of  an  affidavit  for  a  continuance,  on  the  ground  of  the  ab- 
sence of  a  material  witness  in  evidence,  is  an  admission  of  the  truth  of 
the  facts  which  the  affidavit  states  can  be  proved  by  such  witness,  and 
they  can  not  be  contradicted.  Willis  v.  The  People,  399 

See  EVIDENCE,  17. 

ADVERSE  PARTY. 
See  JUSTICES  OF  THE  PEACE,  21,  24. 

AFFIDAVIT. 

SeeBiLiiOP  EXCEPTIONS,  16;  CONTINUANCE,  3,  4,  7,  8;  CRIMINAL  LAW, 
14;  PRACTICE,  15,  17,  33,  62,  100,  101,  120,  124,  131;  PROCESS,  10. 

AGENT  AND  PRINCIPAL. 
See  ADMINISTRATOR  AND  EXECUTOR;  ATTORNEY;  POWER  OF  ATTORNEY. 

AGREEMENT. 
See  CONTRACT. 

619 


600  INDEX. 

ALTERATION  OF  PROCESS. 
See  PROCESS,  1. 

ALIMONY. 

1.  On  a  bill  filed  alleging1  a  desertion  for  more  than  two  years,  and  answer 

confessing  the  desertion,  but  justifying  it  on  account  of  repeated  cruel- 
ty on  the  part  of  the  complainant,  the  jury  having  found  the  charge  of 
desertion  to  be  true  as  alleged  in  the  bill,  the  Court  entered  a  decree 
that  the  bands  of  matrimony  be  dissolved,  and  that  alimony  be  al- 
lowed to  the  respondent  for  the  support  of  herself  and  child,  and  that 
the  cause  »be  continued  to  the  next  term  of  the  Court,  for  the  pur- 
pose of  inquiring  into  the  amount  proper  to  be  allowed.  At 
the  next  term  of  the  Court,  the  same  evidence  was  admit- 
ted on  the  hearing  of  the  question  in  relation  to  the  alimony, 
which  had  been  admitted  on  the  hearing  of  the  application  for  divorce, 
though  objected  to  by  respondent;  and  a  decree  for  one  cent  alimony, 
and  that  each  party  should  pay  the  costs  incurred  by  each,  on  the  appli- 
cation for  alimony :  Held,  that  said  testimony  must  have  been  irrele- 
vant to  an  inquiry  on  the  question  of  alimony,  the  only  question  re- 
maining to  be  decided,  and  that  it  was  error  to  admit  the  same;  and 
that  the  allowance  of  a  nominal  amount  of  alimony,  was  a  virtual  re- 
scinding of  the  judgment  of  the  Circuit  Court  at  the  previous  term. 
Reavisv.  Reavis,  242 

2.  The  final  judgment  of  the  Court  should  have  decreed  a  yearly  allowance 

commensurate  to  the  support  of  the  wife  and  child,  in  proportion  to  the 
husband's  ability,  and  her  condition  in  life.  Ibid., 

3.  The  order  that  the  wife  should  pay  costs,  was  also  erroneous.    Ibid.,  242 

ALIEN. 

1.  An  alien  is  not  qualified  to  serve  as  a  juror  in  any  case.     Guykowski  v. 
The  People,  476 

ANIMALS. 
See  MISCHIEVOUS  ANIMALS. 

AMENDMENT. 

1.  A  complainant  has  an  unquestionable  right  to  amend  his  bill  in  equity, 

before  answer  filed,  and  in  many  cases,  after  and  before  replication 
filed.  Droullard  v.  Baxter  etal.,  191 

2.  A  scire  facias  may  be  amended.     Marshall  v.  Maury,  231 

3.  Applications  to  amend  the  pleadings  in  a  cause,  are  addressed  to  the 

sound  discretion  of  the  Court,  and  the  allowance  of  such  applications 
can  not  be  assigned  for  error.  Phillips  v.  Dana,  498 

4.  Where  an  amend  inent  to  a  declaration  is  a  matter  of  substance,  it  enti- 

tles the  defendant  to  a  continuance  of  the  cause.  Cm-ell  et  al.  v. 
Marks,  525 

See  APPEAL;  ATTACHMENT;  MISTAKE,  2,  3;  RECORD,  1,  2. 

APPEAL. 
From  Justices  of  the  Peace. 

1.  Appeals  from  the  judgments  of  justices  of  the  peace,  must  be  tried  in  the 

Circuit  Court  de  noro.     Tindall  v.  Meeker,  137 

2.  Where  a  judgment  is  rendered  by  a  justice  of  the  peace  upon  a  note  bear- 

ing interest,  and  an  appeal  is  taken  to  the  Circuit  Court;  in  computing 
the  amount  due  on  the  note,  interest  should  be  calculated  upon  the 
note  to  the  time  of  the  rendition  of  the  judgment  in  the  Circuit  Court 
and  not  on  the  judgment.  Ibid.,  137 

MO 


INDEX.  601 

3.  On  appeal  from  a  judgment  of  a  justice  of  the  peace,  the  Circuit  Court 

should  give  judgment  for  the  amount  that  may  be  due,  although  that 
amount  may  exceed  the  jurisdiction  of  a  justice;  provided  the  justice 
had  jurisdiction  at  the  time  of  the  commencement  of  the  suit.  The 
rule  is,  if  an  inferior  court  has  jurisdiction  ab  origine,  no  subsequent 
fact  arising  in  the  case  can  defeat  it.  Ibid.,  .  137 

4.  Where  a  judgment  is  rendered  by  a  justice  of  the  peace  against  two  de- 

fendants, and  one  of  them  only  appeals  to  the  Circuit  Court,  the  cause 
should  be  docketed  against  the  appellant  only.  Afitcheltree  v.  Sparks, 

198 

5.  Where  an  appeal  is  taken  from  a  justice  of  the  peace  to  the  Circuit  Court, 

if  the  justice  had  jurisdiction  of  the  suit  when  it  was  commenced  before 
him,  the  Circuit  Court  may  render  judgment  for  a  sum  exceeding 
$100,  if  such  excess  is  for  interest  that  has  accrued  subsequent  to  the 
rendition  of  the  judgment  by  the  justice  of  the  peace.  Ibid.,  198 

6.  On  an  appeal  from  a  justice  of  the  peace  to  the  Circuit  Court,  if  the  ap- 

peal bond  filed  be  wholly  insufficient,  the  Circuit  Court  should  allow  a 
new  bond  to  be  filed.  Jt  is  error  to  refuse  an  application  to  file  such 
new  bond.  Dedmnn  v.  Barber,  254 

7.  No  appeal  or  writ  of  certiorari  can  be  taken  from  the  judgment  of  a  jus- 

tice of  the  peace,  in  a  suit  brought  to  recover  an  assessment  upon  a 
member  of  a  class,  made  under  §  45  of  the  Militia  Law.  Yunt  v.  Brown , 

264 

8.  The  statute  does  not  authorize  appeal  bonds  to  be  amended  in  criminal 

cases.  The  statute  regulating  appeals  in  civil  cases  is  otherwise.  Su-of- 
fordv.  The  People,  289 

9.  In  appeals  from  justices  of  the  peace,  where  an  appeal  bond  is  decided  to 

be  insufficient,  the  statute  is  imperative  that  the  Court  shall  permit  "  a 
good  and  sufficient  bond  "  to  be  filed.  Hubbard  et  aL  v.  Freer,  467 

10.  Where  the  appeal  bond  was  signed  by  one  of  the  two  appellants,  as  fol- 
lows, "  Hubbard  &  Co.  [Seal]."     Held,  that  the  bond  was  amendable. 
Ibid.,  467 

11.  It  is  not  necessary  that  the  bond  given  on  an  appeal  from  the  judgment 
of  a  justice  of  the  peace  to  the  Circuit  Court,  should  be  entered  into 
before  the  clerk  of  said  court,  or  in  his  office.     It  is  sufficient  if  it  be 
duly  executed,  and  filed  in  the  clerk's  office.     Waldo  et  al.  v.  Arerrff, 

487 

12.  The  issuing  of  a  summons  and  supersedeas,  on  appeal  from  a  judgment 
of  a  justice  of  the  peace,  is  evidence  that  the  appeal  bond  is  approved  by 
the  clerk.    Ibid.,  487 

13.  On  an  appeal  from  the  judgment  of  a  justice  of  the  peace  to  the  Circuit 
Court,  if  the  bond  be  ever  so  defective,  the  court  nevertheless  should  al- 
low a  good  and  sufficient  bond  to  be  filed.     Ibid.,  487 

14.  Appeals  for  the  removal  of  causes  from  an  inferior  to  a  superior  court, 
for  the  purpose  of  obtaining  trials  de  novo,  are  unknown  to  the   com- 
mon law,  and  can  only  be  prosecuted  where  they  are  expressly  given  by 
statute.     The  Schooner  Constitution  v.  Woodtcorth,  511 

15.  In  order  to  enable  the  owner  or  consignee  of  a  vessel  attached  under  the 
"  Act  authorizing  the  seizure  of  boats  and  other  ressels  by  attach- 
ment," to  take  an  appeal  from  the  judgment  of  a  justice  of  the  peace  in 
such  case,  he  should  make  himself  a  party  defendant  to  the  suit  before  the 
justice.     Ibid.,  511 

16.  Sed  quere.  Whether  an  appeal  can  be  taken  from  the  judgment  of  a  jus- 
tice of  the  peace  under  that  act.     Ibid.,  511 

17.  An  appeal  lies  from  the  decision  of  two  justices  of  the  peace  under  tho 
"Act  regulating  Inciosures."    Holliday  v.  Swailes,  515 

18.  The  Circuit  Court  can  not  amend  the  papers  on  appeal  from  the  judg- 
ment of  a  justice  of  the  peace,  by  striking  out  the  name  of  one  of  the 
defendants  in  the  Court  below .     Maxcy  v.  Padfield,  590 

From  Probate  Court. 

19.  As  the  statute  makes  no  provision  for  amending  the  bond,  or  for  filing 

VOL.  1-41  M1 


602  INDEX. 

a  new  bond,  in  the  case  of  a  defect  in  the  bond  filed  on  appeal  from  the 
Probate  Court,  an  application  so  to  do,  is  necessarily  addressed  to  the 
discretion  of  the  Court,  and  the  manner  of  the  exercise  of  that  discre- 
tion can  not  be  assigned  for  error.  Grain  y.  Bailey  et  al.,  321 

20.  Quere,  Whether  the  Circuit  Court  can  not,  in   its  discretion,   authorize 
the  amendment  of  an  appeal  bond,  in  case  of  an  appeal  from  the  Pro- 
bate Court.    Ibid.,  321 

21.  In  appeals  from  the  Probate   Court  to  the  Circuit  Court,  the  statute 
requires  that  the  appeal    bond    shall  be    made    payable  to    the  Peo- 
ple of  the  Stiite  of  Illinois.    A  bond  payable  to  the  appellee,  is  not  in 
compliance  with  the  statute.     Ibid.,  321 

From  the  Trial  of  the  Eight  of  Property. 

22.  Objections  in  the  nature  of  a  plea  in  abatement  must  bo  made  in  the 
first  instance.     It  is  too  late  to  make  them  on  appeal..    An  appeal  from 
the  decision  of  a  jury,  upon  the  trial  of  the  right  to  property  levied  on 
execution,  must  be  taken  at  the  trial,  and  the  appeal  bond  executed 
before  the  Court  is  dissolved.     An  appeal  bond  filed  the  day  alter  the 
trial,  is  not  sufficient.     If  an  appeal  be  irregularly  taken  to  the  Circuit 
Court,  from  the  verdict  of  a  jury  on  the  trial  of  the  right  of  property 
before  a  justice,  and  the  'appellee  appear  in  the  Circuit  Court,  he  waives 
all  objections  to  the  irregularity  of  the  appeal.     Pearce  et  al.  v.  Swan, 

t  266 

23.  A  motion  to  dismiss  an  appeal  from  the  verdict  of  a  jury  on  the  trial  of 
the  right  of  property  before  a  sheriff,  is  addressed  to  the  discretion  of 
the  Court,  and  the  decision  of  the  Circuit  Court  on  such  motion,  can  not 
be  assigned  for  error.     Sheldon  v.  Reihle  et  al.,  519 

24.  A  bond,  on  appeal  from  a  sheriff's  jury  on  the  trial  of  the  right  of  prop- 
erty, may  be  executed  by  an  attorney  in  fact.    Ibid.,  519 

To  the  Supreme  Court. 

25.  Where  a  bill  of  exceptions  signed  and  sealed  by  the  judge,  and  an  ap- 
peal bond  were  lodged  in  the  clerk's  office,  but  not  marked  filed:  Held, 
that  they  were  not  part  of  the  record  in  the  cause,  and  that  the  appeal 
must  be  dismissed.     Holmes  v.  Parker  et  al.,  567 

26.  On  appeal  from  the  Circuit  to  the  Supreme  Court,  a  variance  between 
the  amount  of  the  judgment  appealed  from,  and' the  amount  recited  in 
the  bond  is  fatal ,  though  the  variance  occurred  through  the  mistake  or 
inadvertence  of  the  clerk  of  the  Circuit  Court.     Brooks  et  al.  v.  Town 
of  Jacksonville,  568 

27.  Where  an  appeal  is  dismissed,  the  court  will  not  permit  the  transcript 
of  the  record  to  be  withdrawn  for  the  purpose  of  bringing  a  writ  of 
error.    Ibid.,  568 

28.  The  prayer  for  an  appeal  from  the  Circuit  to  the  Supreme  Court,  may 
be  made  at  any  time  during  the  term  in  which  the  judgment  is  rendered. 
Balance  v.  Frisby  et  al.,  595 

29.  An  appeal  from  the  Circuit  to  the  Supreme  Court,  where  the  judgment 
is  final,  and  amounts  to  $20  exclusive  of  costs,  or  relates  to  a  franchise 
or  freehold,  is  a  matter  of  right.     Emerson  v.  Clark,  596 

See  ATTORNEY,  4,  5,  6;  BOND,  1,  3. 

APPEARANCE. 

1.  Where  C.  and  W.  were  joined  as  defendants  in  a  suit  and  process  served 

only  on  C.,  and  the  defendants'  attorney  in  a  demurrer  to  the  declara- 
tion nsed  the  language  "  defendants  come  by  their  attorney  and  de- 
fend," etc.,  but  in  the  subsequent  pleadings  used  only  the  name  of  C. : 
Held,  that  he  did  not  thereby  enter  W.'s  appearance.  Clemson  et  al. 
v.  State  Bank  of  Illinois,  45 

2.  Irregularity  of  process,  whether  the  process  be  void  or  voidable,  is  cured 

by  appearance  without  objection.     Easton  et  al.  v.  Altum,  250 


INDEX.  603 

3.  The  want  of  a  seal  to  a  summons  can  not  be  taken  advantage  of  after  an 

appearance.    Ibid.,  250 

4.  When  an  attorney  commences  an  action  in  the  name  of  another,  or  ap- 

pears for  another,  the  Court  will  presume  that  he  has  authority  to  do 
so,  until  the  contrary  appear.  Hansom  v.  Jones,  291 

APPOINTMENT. 
See  CLERK;  CONSTABLE,  5,  6,  7. 

APPROPRIATION. 
See  PUBLIC  LANDS,  7,  8,  12. 

ARBITRATION. 
See  REFEREES. 

ARREST  OF  JUDGMENT. 

1.  Where  the  verdict  of  the  jury  in  a  trial  for  larceny,  was,  "  We,  the  jury, 
find  the  defendant  guilty,  and  sentence  him  to  the  penitentiary  for  the 
term  of  three  years/'  and  a  motion  was  made  in  arrest  of  judgment,  be- 
cause the  value  of  the  property  stolen  was  not  stated  in  the  verdict: 
Held,  that  the  defect  was  fatal,  and  that  the  judgment  should  have  been 
arrested.  Highland  v.  The  People,  392 

ARSON. 
See  INDICTMENT,  1. 

ASSAULT  AND  BATTERY. 

1.  The  venue,  in  an  action  for  assault  and  battery  is  transitory.    Hurley  v. 

Marsh  et  al.,  329 

2.  Where  a  declaration  stated  that  the  assault  and  battery  were  committed 

"  at  Montebello,  in  the  county  of  Hancock,  and  within  the  jurisdiction 
of  this  court,"  Held,  that  it  was  unnecessary  to  prove  that  the  assault 
and  battery  were  committed  within  the  town  of  Montebello.  Ibid.,  329 

See  INDICTMENT,  3. 

ASSESSMENT  OF  DAMAGES. 
See  DAMAGES. 

ASSIGNMENT  AND  ASSIGNEES. 

1.  Deeds  or  obligations  containing  mutual  covenants,  are  not  assignable. 

Beezley  v.  Jones,  34 

2.  One  covenant  in  an  obligation  or  contract  containing  several  covenants. 

can  not  be  assigned  without  the  other.     Ibid. ,  34 

3.  Semble,  That  instruments  in  writing  for  the  conveyance  of  land,  or  for 

the  performance  of  personal  duties,  are  not  assignable.    Ibid.,  34 

See  EVIDENCE,  47;  PROMISSORY  NOTES. 

ATTACHMENT. 

1.  In  order  to  enable  the  owner  or  consignee  of  a  vessel  attached  under  the 

"  Act  authorizing  the  seizure  of  boats  and  other  vessels  by  attachment," 
to  take  an  appeal  from  the  judgment  of  a  justice  of  the  peace  in  such 
case,  he  should  make  himself  a  party  defendant  to  the  suit,  before  the 
justice.  The  Schooner  Constitution  v.  Nelson  Woodworth,  511 

2.  Sed  quere,  Whether  an  appeal  can  be  taken  from  the  judgment  of  a 

justice  of  the  peace,  under  that  act.     Ibid.,  511 

3.  On  the  trial  of  the  right  of  property  levied  on  by  attachment,   the  writ 

<J43    - 


604  IXDEX. 

of  attachment  and  return  thereon,  are  admissible  in  evidence.  She l- 
don  v.  Reihle  et  al.,  519 

4.  Where  an  attachment  bond  was  signed  by  the  principal,  Hunter,  and 
surety,  but  no  seals  were  affixed  to  the  bond,  and  the  defendant  moved 
to  dismiss  the  suit  for  want  of  a  sufficient  bond ;  and  thereupon  the 
plaintiff  moved  that  Hunter  be  allowed  to  amend  the  bond  by  affixing 
a  seal,  which  motion  the  Court  overruled  and  dismissed  the  suit.  Held, 
that  the  decision  was  correct,  as  the  motion  to  amend  did  not  extend  to 
both  obligors.  Hunter  v.  Ladd,  551 

See  CONSTABLE,  8,  9,  10;  CONTEMPT  OF  COURT;  EVIDENCE,  7,  8,  34,  56; 
RIGHT  OP  PROPERTY,  7,  13,  14. 

ATTORNEY. 

1.  A  lawyer  employed  to  defend  a  suit  is  not  authorized  to  consent  to  the 

entry  of  a  judgment  against  his  client,  without  his  assent.  His  doing 
so  is  a  violation  of  the  confidence  reposed  in  him,  and  if  done  with  a 
corrupt  intent,  involves  such  a  degree  of  moral  turpitude,  as  would 
authorize  the  Court  to  strike  his  name  from  the  Roll  of  Attorneys. 
The  People  v.  Lamborn,  123 

2.  In  general,  where  the  complainant  is  not  the  person  injured,  application 

for  a  rule  against  an  attorney  to  show  cause  why  his  name  should  not 
be  stricken  from  the  Roll,  should  be  based  upon  the  affidavit  of  some 
person  who  shall  affirmatively  allege  the  truth  of  the  charges  preferred 
against  the  attorney,  and  not  merely  his  belief  in  the  truth  from  the 
information  of  others.  Ibid.,  123 

3.  When  an  attorney  commences  an  action  in  the  name  of  another,  or  ap- 

pears for  another,  the  Court  will  presume  that  he  has  authority  to  do 
so,  until  the  contrary  appear.  Ransom  v.  Jones,  291 

4.  Where  a  supersedeas  bond  purported  to  be  executed  by  a  person  as  at- 

torney in  fact,  in  the  name  of  his  principal,  and  the  authority  of  the 
attorney  did  not  appear:  Held,  that  the  court  would  presume  that  the 
attorney,  had  authority  to  execute  the  bond ,  unless  his  authority  was 
questioned  by  affidavit.  Campbell  et  al.  v.  State  Bank  of  Illinois, 

423 

5.  The  Supreme  Court  will  presume  that  a  bond  executed  by  an  attorney  in 

the  name  of  his  principals,  and  filed  in  the  Court  below,  was  executed 
by  a  person  duly  authorized,  and  that  the  Court  below  was  satisfied  of 
that  fact,  unless  the  contrary  appears.  Sheldon  v.  ReiTile  et  al.,  519 

6.  A  bond  on  appeal  from  the  decision  of  sheriff's  jury  on  the  trial  of  the 

right  of  property,  may  be  executed  by  an  attorney  in  fact.    Ibid.,   519 

See  ADMINISTRATOR,  5;  POWER  OP  ATTORNEY. 

AUTHENTICATION. 
See  RECORD,  4,  8,  9,  10. 

AVERMENT. 
See  PLEADING;  CHANCERY. 

BAIL. 

1.  Where  B.  instituted  a  suit  against  I.  by  capias,  and  held  the  defendant 

to  bail ;  and  the  Court,  on  motion,  discharged  the  bail,  but  rendered 
judgment  for  the  plaintiff  for  the  amount  of  his  demand:  Held,  that 
the  plaintiff  could  not  bring  a  writ  of  error  to  reverse  the  decision  of 
the  Court  discharging  the  bail.  Held,  also,  that  the  defendant  in  error 
should  have  demurred  to  the  assignment  of  error  ;  yet,  that  notwith- 
standing he  had  joined  in  error,  the  Court  would  not,  by  affirming  the 
judgment,  subject  the  defendant  to  the  costs  of  the  Supreme  Court  ; 
but  would  dismiss  the  writ  of  error.  Brunerv.  Ingraham,  556 

2.  A  motion  to  discharge  bail,  is  addressed  to  the  sound  discretion  of  the 

644 


INDEX.  605 

Court;  and  its  decision  upon  such  a  motion,  can  not  be  assigned  for 
error.  Ibid.,  556 

BANK  AND  BANK  NOTES. 

1.  The  bills  issued  by  the  old  State  Bank  of  Illinois,  were  bills  of  credit 

within  the  meaning  of  the  Constitution  of  the  U.  S. ;  and  a  note  given 
in  consideration  of  such  bills,  is  void  and  can  not  be  collected  by  law. 
Linn  v.  State  Bank  of  Illinois,  87 

2.  A  debt  due  to  the  State  Bank  of  Illinois,  is  a  debt  due  to  the  State,  and 

is  not  barred  by  the  Statute  of  Limitations.  State  Bank  of  Illinois  v. 
Brown  et  al.,  106 

3.  In  an  action  by  the  old  State  Bank  of  Illinois,  upon  a  promissory  note 

given  in  satisfaction  of  two  judgments  recovered  upon  promissory  notes 
executed  to  said  bank,  in  consideration  of  bills  of  said  bank  which  had 
been  declared  by  the  Supreme  Court  to  be  bills  of  credit  emitted  by 
the  State,  in  contravention  of  the  Constitution  of  the  U.  S. ;  the  defend- 
ants offered  to  show  the  consideration  of  the  judgments  in  bar  of  the 
action:  Held,  that  the  evidence  was  inadmissible,  and  that  the  validity 
of  the  judgments  could  not  be  impeached  in  such  action.  Mitchell  etal. 
v.  State  Bank  of  Illinois,  526 

See  COSTS,  2. 

BETTING  ON  ELECTIONS 
See  CONTRACT,  17. 

BILL. 
See  CHANCERY. 

BILLS  OF  CREDIT. 
See  BANK. 

BILL  OF  EXCEPTIONS. 

1.  Exceptions  taken  upon  the  first  trial,  a  new  trial  being  granted  and  had, 

can  not  avail  the  party  excepting.  In  order  to  be  available,  the  excep- 
tions should  have  been  renewed  on  the  last  trial  (if  the  same  ground  of 
exception  occurred.)  Harmison  v.  Clarke  et  al.,  131 

2.  A  bill  of  exceptions  can  not  be  taken  unless  the  exceptions  be  made  on  the 

trial,  and  before  the  jury  is  discharged;  and  it  lies  for  receiving  improp- 
er or  rejecting  proper  testimony,  or  misdirecting  a  jury  on  a  point  of 
law.  Sto-ifford  v.  Dovenor,  165;  Gilmore  v.  BaJJard,  252 

3.  The  matter  or  decision  excepted  to  must  have  arisen  during  the  progress 

of  the  cause,  and  before  final  judgment.    Ibid.,  252 

4.  A  bill  of  exceptions  will  not  lie  to  the  final  judgment  of  a  Court,  where 

the  whole  case  is  submitted  to  the  Court  for  decision,  and  a  jury  dis- 
pensed with.  White  et  al.  v.  Wiseman,  169;  Gilmore  v.  Ballard, 

252 

5.  A  defendant  by  suffering  judgment  to  go  by  default  is  out  of  Court,  and 

has  no  right  to  except  to  testimony.  He  is,  however,  permitted  to 
cross-examirte  the  witnesses,  but  he  can  not  introduce  testimony  or  make 
adefense  to  the  action.  Morton  v.  Bailey  et  al.,  213 

6.  The  reasons  filed  by  a  party,  as  the  foundation  for  a  motion  in  the  Circuit 

Court,  do  not  thereby  become  a  part  of  the  record.  To  make  them  a 
part  of  the  record  they  should  be  embodied  in  a  bill  of  exceptions.  Van- 
lanflinyham  v.  P^ellowset  al..  233 

7-8.  Where  an  erroneous  instruction  is  given  to  the  jury,  but  the  bill  of 
exception"  does  not  enable  the  Court  to  see  what  effect  it  probably  had 
upon  their  verdict,  the  judgment  of  the  Court  below  will  be  reversed. 
The  bill  of  exceptions  should  have  stated  the  proof  upon  the  point. 
Kirchell  v.  Brattort,  300 

645 


606  INDEX. 

9.  In  a  cause  tried  by  the  Court  without  the  intervention  of  a  jury,  a  bill 

of  exceptions  can  not  be  taken  to  the  final  judgment  of  a  Circuit  Court 
non-suiting  the  plaintiff,  even  where  it  is  agreed  by  the  parties,  that 
either  party  shall  have  the  same  right  to  except  as  if  the  cause  were 
tried  by  a  jury.  Ballingall  v.  Spraggins,  330 

10.  A  bill  of  exceptions  will  only  lie  for  receiving  improper  testimony  or 
rejecting  proper  testimony,  or  for  misdirecting  the  jury  on  a  point  of 
law.    Ibid.,  3bO 

11.  Where  the  Court  below  hear  the  testimony  on  both  sides  a  bill  of  excep- 
tions will  not  lie  to  the  judgment  of  the  Court,  though  the  parties  agree 
that  there  shall  be  "  the  same  right  to  except  to  any  opinion  of  the  Court 
during  the  progress  of  the  trial  and  upon  final  judgment,  as  though  the 
cause  were  tried  before  a  jury,  and  such  exception  shall  be  considered  in 
the  Supreme  Court,  as  though  the  cause  were  tried  by  a  jury."    Arenz 
v.  Reihle  ei  al.,  340 

12.  It  does  not  follow  as  a  necessary  consequence  to  the  asking  of  a  question 
of  a  witness  on  the  trial  of  a  cause  that  the  answer  will  be  in  the  af- 
firmative ;  and  unless  the  answer  constitutes  illegal  testimony  for  the 
party  calling  the  witness,   it  is  no  ground  of  exception.    Miller  v. 
HouckeetaL,  501 

13.  Where  an  exception  is  taken  to  a  question  asked  a  witness  on  the  trial 
of  a  cause,  if  the  answer  of  the  witness  is  not  given  in  the  bill  of  ex- 
ceptions the  Supreme  Court  can  not  know  that  the  Circuit  Court  received 
improper  testimony.    Ibid.,  501 

14.  The  province  of  a  bill  of  exceptions  taken  in  the  progress  of  a  trial  is  to 
show  that  improper  testimony  has  been  received,  or  proper  testimony 
rejected.    Ibid.,  501 

15.  Where  the  bill  of  exceptions  enables  the  Court  to  ascertain  the  sum  that 
would  have  been  recovered  if  instructions  asked  for  had  been  given,  it 
is  unnecessary  to  send  the  case  back  for  a  new  trial;  judgment  will  be 
rendered  for  that  amount  in  the  Supreme  Court.    Pearsons  et  al.  v. 
Bailey,  507 

16.  Semble,  That  the  Court  will  presume  that  an  affidavit  made  upon  a 
motion  for  a  new  trial,  and  referred  to  in  the  bill  of  exceptions  taken 
upon  the  overruling  of  the  motion,  is  true,  unless  the  same  is.  disputed 
in  the  record.     Mulford  v.  Shepard,  583 

17.  Where  a  motion  is  made  in  the  Court  below,  to  set  aside  an  issue  as  im- 
material, the  fact  should  be  stated  in  a  bill  of  exceptions.    Burlingame 
et  al.  v.  Turner,  588 

BILLS  OF  EXCHANGE. 
See  PROMISSORY  NOTES. 

BILL  OF  SALE. 

1.  Mortgages,  marriage  settlements,  and  limitations  over  of  chattels,  are 

valid  against  all  persons  without  delivery  of  possession,  provided  the 
transfer  be  bona  fide,  and  the  possession  remain  with  the  person  shown 
to  be  entitled  to  it  by  the  stipulations  of  the  deed.  Thornton  v.  Daven- 
port et  al.,  296 

2.  Semble,  That  an  absolute  sale  of  personal  property,  where  the  possession 

remains  with  the  vendor,  is  void  as  to  creditors  and  purchasers,  though 
authorized  by  the  terms  of  the  bill  of  sale.  Ibid.,  296 

3.  The  rule  governing  conveyances  of  personal   property,  is,  that  unless 

possession  shall  accompany  and  follow  the  deed,  the  conveyance  by 
legal  inference  is  fraudulent  and  void  as  to  creditors.  Kitchell  v.  Brat- 
ton,  300 

See  FRAUD. 

BOATS. 
See  ATTACHMENT,  1,  2. 

646 


INDEX.  607 

BOND. 

1.  Where  a  super  sedeas  bond  purported  to  be  executed  by  a  person  as  attor- 

ney in  fact,  in  the  name  of  his  principal,  and  the,authority  of  the. at- 
torney did  not  appear:  Held,  that  the  Court  would  presume  that 
the  attorney  had  authority  to  execute  the  bond,  unless  his  authority 
was  questioned  by  affidavit.  Campbell  et  al.  v.  State  Bank  of  Illinois, 

423 

2.  Where  two  persons  execute  a  bond,  one  as  principal  and  the  other  as 

surety,  one  is  equally  as  much  bound  to  the  obligee  as  the  other.     Wil- 
son etal.  v.  Campbell  etal.,  493 
SembJe,  That  the  signing  as  surety,  is  only  evidence  between  the  obligors, 
of  the  character  of  the  obligation  of  each.     Ibid. ,  493 

3.  The  Supreme  Court  will  presume  that  a  bond  executed  by  an  attorney  in 

the  name  of  his  principals,  and  filed  in  the  Court  below,  was  executed 
by  a  person  duly  authorized,  and  that  the  Court  below  was  satisfied  of 
that  fact,  unless  the  contrary  appear.  Sheldon  v.  Seihle  et  al.,  519 

4.  A  bond  on  appeal  from  the  decision  of  a  sheriff's  jury  on  the  trial  of  the 

right  of  property  may  be  executed  by  an  attorney  in  fact.    Ibid.,      519 

5.  Where  an  attachment  bond  was  signed  by  the  principal,  Hunter,  and 

surety,  but  no  seals  were  affixed  to  the  bond,  and  the  defendant  moved 
to  dismiss  the  suit  for  want  of  a  sufficient  bond ;  and  thereupon  the 
plaintiff  moved  that  Hunter  be  allowed  to  amend  the  bond  by  affixing  a 
a  seal,  which  motion  the  court  overruled,  and  dismissed  the  suit:  Held 
that  the  decision  was  correct,  as  the  motion  to  amend  did  not  extend  to 
both  obligors.  Hunter  v.  Ladd,  551 

See  ADMINISTRATOR  AND    EXECUTOR.   6;  AMENDMENT;  APPEAL;  EVI- 
DENCE, 8,  9;  PLEADING. 

BURGLARY. 
See  CRIMINAL  LAW,  5. 

CANAL  LANDS. 

1.  In  a  Ri~e  of  canal  lots  or  lands,  under  the  act  of  January  9, 1836,  a  special 

notice  of  the  terms  of  sale  was  read,  which  among  other  things  de- 
clared, "  That  in  case  any  bidder  shall  fail  to  comply  with  the  terms  of 
sale,  during  the  days  of  sale,  on  which  the  sale  of  the  lot  is  made,  his 
bid  will  be  forfeited,  and  the  lot  resold,  the  first  purchaser  being  held 
accountable  to  the  Commissioners  for  any  loss  that  may  accrue  from  the 
sale;  but  entitled  to  no  profit  therefrom:  "  Held  that  the  condition  was 
unauthorized  by  law  and  void.  Illinois  and  Michigan  Canal  v.  Cal- 
houn,  521 

2.  In  the  sales  of  canal  lots  or  lands  under  the  act  of  January  9, 1836,  the  Canal 

Commissioners  had  no  authority  to  annex  any  other  conditions  or  terms 
than  those  provided  in  said  act,  and  the  act  of  Congress  in  relation  to 
the  duties  of  registers  and  receivers  upon  the  sale  of  the  public  lands  of 
the  U.  8.  Ibid.,  521 

8.  A  count  in  a  declaration  against  a  purchaser  of  canal  lands  or  lots,  for 
failure  to  complete  the  purchase,  under  the  act  of  January  9th,  1 836, 
must  contain  an  averment  that  the  defendant  purchased  the  lot  at  a  pub- 
lic sale,  and  that  he  was  the  highest  bidder  therefor.  Ibid.,  521 

CA.   SA. 
See  CONSTABLE,   1,  2. 

CASES  OVERRULED. 

1.  The  case  of  Clarke  v.  Ross.  Broese,  261,  is  overruled.    Bowers  v.  Green, 

42 

2.  The  case  of  Snyder  r.  The  State  Bank  of  Illinois,  Breese,  122,  is  over- 

ruled.    Linn  v.  The  State  Bank  of  Illinois,  87 

647 


COS  IXDEX. 

8.  The  case  of  Poole  v.  Vanlandinghara,  Breese,  22,  is  overruled.    Stacker 
et  al.  v.  Watson,  207 

CERTAINTY. 
See  CRIMINAL  LAW. 

CERTIFICATE. 
See  PUBLIC  LANDS;  RECORDS. 

CERTIORARI. 

1.  A  writ  of  certiorari  to  remove  a  cause  from  a  justice  of  the  peace  to  the 

Circuit  Court,  is  given  by  statute  in  such  cases  only  as  appeals  are  given. 
Yiint  v.  Brown,  264 

2.  No  appeal  or  writ  of  certiorari  can  be  taken  from  the  judgment  of  a 

justice  of  the  peace,  in  a  suit  brought  to  recover  an  assessment  upon  a 
member  of  a  class,  made  under  §  45  of  the  Militia  Law.  Ibid.,  264 

3.  The  statute  allowing  causes  to  be  taken  to  the  Circuit  Court  by  certiorari, 

requires  the  petition  for  that  piirpose  to  set  forth  that  the  judgment 
complained  of,  was  not  the  result  of  negligence  on  the  part  of  the 
petitioner,  and  that  in  his  opinion  it  is  unjust,  setting  forth  wherein  the 
injustice  consists.  It  must  also  allege  that  it  was  not  in  the  power  of 
the  party  to  take  an  appeal  in  the  ordinary  way;  and  set  forth  partic- 
ularly the  circumstances  that  prevented  him  from  so  doing.  Cushman 
v.  Rice  et  al.,  565 

4.  Absence  from  the  county,  and  ignorance  of  the  rendition  of  a  judgment 

by  a  justice  of  the  peace,  against  a  plaintiff  upon  a  note  lodged  with  the 
justice  for  collection,  are  not  a  sufficient  excuse  for  not  taking  an  appeal 
in  the  ordinary  way,  and  do  not  authorize  the  allowance  of  a  writ  of 
certiorari.  Ibid.,  565 

5.  Semble,  That  where  a  writ  of  certiorari  to  remove  a  cause  from  a  justice 

of  the  peace  to  the  Circuit  Court,  is  improviclently  allowed,  the  Circuit 
Court  should  quash  the  writ,  and  dismiss  the  appeal.  Ibid.,  565 

6.  Where  papers  which  are  lodged  in  the  clerk's  office,  but  are  not  marked 

filed,  are  incorporated  into  a  record  from  the  Court  below,  a  writ  of 
certiorari  may  be  issued  to  the  clerk,  to  send  up  a  true  record.  Holmes 
v.  Parker  et  al,,  567 

7.  Where  a  bill  of  exceptions  signed  and  sealed  by  the  judge,  and  an  ap- 

peal bond,  were  lodged  in  the  clerk's  office,  but  not  marked  filed:  Held, 
that  they  were  not  part  of  the  record  in  the  cause,  and  that  the  appeal 
must  be  dismissed.  Ibid.,  567 

CHANCERY  AND  CHANCERY  PRACTICE. 

1.  A  bill  in  equity  to  enforce  the  specific  performance  of  a  contract,  must 

show  a  complete  performance  of  all  the  stipulations  on  the  part  of  the 
complainant,  to  entitle  him  to  a  decree.  Bates  v.  Wheeler,  54 

2.  He  who  seeks  equity  must  do  equity.     Ibid.,  54 

3.  A  complainant  has  an  unquestionable  right  to  amend  his  bill  in  equity 

before  answer  filed,  and  in  many  cases,  after,  and  before  replication 
filed.  Droullard  v.  Baxter  et  al.,  191 

4.  It  is  not  the  province  of  a  court  of  chancery  to  carry  into  effect  the  judg- 

ments of  a  court  of  law.     Bustard  et  al.  v.  Morrison  et  al.,  235 

5.  If  by  lapse  of  time,  or  his  own  negligence,  a  party  loses  his  lien,  a  court 

of  chancery  can  not  aid  him  by  extending  the  lien  beyond  the  period 
limited  by  law.  Ibid.,  235 

6.  It  is  clearly  erroneous  to  dismiss  a  bill  filed  against  several,  a  part  only 

of  whom  having  been  served  with  process,  or  entered  their  appearance, 
on  motion  of  counsel  for  those  who  are  served  with  process.  A  dismissal 
of  a  bill,  and  a  dissolution  of  an  injunction  against  parties  who  are  not 
in  court,  on  motion  of  counsel  for  those  only  who  have  entered  their  ap- 
pearance, is  erroneous.  Duncan  et  al.  v.  State  -Bank  et  al.,  262 

648 


INDEX.  609 

7.  An  averment  in  a  bill  in  chancery,  that  the  payment  of  a  note  was  made 

on  the  day  the  same  became  due,  is  not  sustained  by  proving  that  the 
money  was  paid,  or  tendered,  at  a  subsequent  and  remote  day.  Moffett 
v.  Clements,  '  384 

8.  The  rule  at  law,  that  the  evidence  must  substantially  support  the  plaint- 

iff's declaration,  is  applicable  to  bills  in  chancery.    Ibid.,  384 

9.  It  is  not  necessary  in  a  suit  in  chancery,  that  there  should  be  an  order  of 

publication,  before  notice  to  parties  who  are  not  served  with  process. 
can  be  given  by  advertisement  in  a  public  newspaper.  Ayres  et  al.  v. 
Lusk  et  al.,  536 

10.  Where  a  part  of  the   defendants  in  a  chancery  suit  were  non-residents, 
and  affidavit  was  made  of  this  fact,  and  filed  in  the  clerk's  office,  and 
the  clerk  published  a  notice  for  four  weeks  successively  in  a  public 
newspaper  printed  in  this  State,  of  the   pendency  of  the  suit,  and  re- 
quiring such  defendants  to  appear  and  answer  the  bill,  or  that  the  same 
would  be  taken  as  confessed  against  them:    Held,  that  the  defendants 
were  duly  notified  under  the  statute.     Ibid.,  536 

See  ALIMONY. 

11.  Where  A  entered  into  a  contract  with  B,  for  the  purchase  of  real  estate, 
the  consideration  of  which  was  to  be  paid  in  installments,  the  first  on 
some  particular  day,  and  the  residue  at  stated  periods  thereafter,  the 
deed  to  be  executed  and  delivered  on  payment  of  the  first  installment; 
and  B  refused  to  execute  the  deed  in  pursuance  of  the  agreement;  and 
A  thereupon  instituted  proceedings  at  law,  for  the  recovery  of  the 
money  paid  on  the  contract:    Held,  that  the  institution  of  a  suit  for 
the  recovery  of  the  money  paid,  is,  in  legal  contemplation,  a  virtual  re- 
scission of  the  contract;  and  A  cannot  afterward  compel  the  specific 
execution  thereof  in  a  court  of  equity.     Herrington  v.  Hubbard,      569 

12.  Under  such  circumstances,  B  is  at  perfect  liberty  to  treat  the  agreement 
as  rescinded,  and  a  contract  afterward  made  by  him  for  the  sale  of  the 
same  premises,  to  a  third  person  for  a  valuable  consideration,  is  valid. 
The  proceeding  is  to  be  considered  as  a  disaffirmance  of  the  contract, 
and  is,  in  legal   contemplation,  notice  to  every  person  of  such  fact. 
Ibid.,  569 

13.  The  bringing  of  a  suit  to  recover  back  the  consideration  money,  after 
a  breach  of  the  contract,  is  equivalent  to  an  express  disaffirmance  of  the 
contract;  and  to  be  regarded  as  sufficient  evidence  of  the  determination 
of  the  party  to  treat  it  as  rescinded,  as  the  consideration  can  only  be 
recovered  back  on  the  ground  of  a  disaffirmance  of  the  contract.     Ibid., 

569 

14.  A  specific  performance  of  a  contract  will  not  be  decreed  where  a  party 
has  treated  it  as  rescinded,  by  suing  to  recover  back  the  consideration 
paid  upon  the  contract.    Ibid.,  569 

15.  A  party  can  not  proceed  to  recover  in  an  action  at  law,  the  considera- 
tion paid  on  a  contract,  and  proceed  concurrently  in  a  court  of  equity, 
for  a  specific  performance  of  the  same  contract ;  because  a  recovery  at 
law  is  based  on  an  actual  or  constructive  disaffirmance  of  the  contract  ; 
and  a  party  can  not  obtain  a  decree  for  the  specific  execution  of  a  con- 
tract, by  a  judgment  at  law  pronounced  disaffirmed.    Ibid.,  569 

16.  Semble,  That  an  action  of  covenant  to  recover  damages  for  the  non-per- 
formance of  a  contract,  may  be  proceeded  in  concurrently  with  proceed- 
ings in  chancery,  to  compel  a  specific  performance.     Ibid.,  569 

17.  If  the  answer  to  a  bill  in  chancery  discloses  an  interest  in  a  third  per- 
son, in  the  subject-matter  of  the  suit,  he  should  be  made  a  defendant 
in  the  bill,  that  he  may  have  an  opportunity  of  defending  his  interests, 
which  might  otherwise  be  taken  away  from  him  without  a  hearing. 
Ibid..  569 

18.  The  rule  is  almost  inflexible  —  certainly  so  where  it  can  be  done  with- 
out extraordinary  difficulty,  or  where  the  defendants  are  not  very  numer- 
ous, and  do  not  reside  in  remote  and  distant  countries,  that  all  parties 
in  interest  shall  be  made  defendants,  so  that  no  decree  may  lxi  made 

619 


610  INDEX. 

which  would  affect  their  interests, without  their  being  heard.    Ibid.,  569 

19.  Courts  will  take  notice  of  the  omission  of  proper  defendants  in  the  bill, 

though  no  demurrer  be  interposed,  where  it  is  manifest  that  the  decree 

will  nave  the  effect  of  depriving  them  of  their  legal  rights.    Ibid.,  569 

CHOSES  IN  ACTION. 
See  ASSIGNMENT;  PHOMISSOHY  NOTES. 

CITY  OF  CHICAGO. 

1.  The  criminal  jurisdiction  of  the  Municipal  Court  of  the  City  of  Chicngo, 

is  confined  to  the  territorial  limits  of  said  city.     Bell  v.  The  People, 

397 

2.  An  indictment  purporting  to  be  found  by  "  grand  jurors  chosen,  selected, 

and  sworn,  in  and  for  the  City  of  Chicago  and  County  of  Cook,"  is  bad, 

and  should  be  quashed  on  motion.    Ibid.,  397 

8.  The  "Act  supplemental  to  An  Act  to  Incorporate  the  City  of  Chicago," 

has  no  application  to  criminal  proceedings.    Ibid.,    '  397 

CLERKS  OF  COURTS. 

1.  The  fair  interpretation  of  the  provision  of  the  Constitution  of  this  State, 

that  "  The  Supreme  Court,  or  a  majority  of  the  justices  thereof,  the 
Circuit  Courts,  or  the  justices  thereof,  shall,  respectively,  appoint  their 
own  clerks,  "is  that  the  Court,  in  contradistinction  to  a  personal  author- 
ity, is  the  repository  of  the  trust  conferred  by  the  Constitution,  and  that 
whenever  a  clerk  has  been  appointed  the  trust  is  thereby  executed,  and 
can  not  be  resumed  or  again  exercised,  until  a  vacancy  shall  occur  in 
one  of  the  several  ways  provided  by  law.  The  People  v.  Mobley,  215 

2.  The  terms,  "  The  justices  thereof ,"  are  used  only  to  confer  an  authority 

to  make  an  appointment  in  vacation,  as  well  as  in  term.    Ibid.,      215 

3.  The  Constitution  gives  to  the  Court  the  authority  to  appoint  its  clerk; 

but  when  thus  appointed,  it  fixes  no  limit  to  the  duration  of  his  office. 
Ibid.,  215 

4.  A  clerk  of  the  Circuit  Court  holds  his  office  under    the  Constitution  ad 

libitum,  until  the  legislature  shall  think  proper  to  prescribe  the  tenure 
of  the  office.  This  it  is  certainly  competent  for  the  legislature  to  do. 
Ibid.,  215 

5.  A  judge  of  a  Circuit  Court  can  not  remove  a  clerk,  except  for  some  of 

the  causes  pointed  out  in  the  statute.     Ibid.,  215 

6.  The  office  of  clerk  |of  the  Circuit  Court  is  created  by  the  Constitution, 

and  its  duration  is  left  undefined;  and,  unless  its  tenure  be  limited  by 
law,  it  would  be  of  indefinite  duration.  Ibid.,  215 

CONDITION. 
See  ADMINISTRATOR;  CANAL  LANDS;  CONTRACT;  ESTATES. 

CONFESSION  OF  JUDGMENT. 
See  JUDGMENT  BY  CONFESSION. 

CONSIDERATION. 

1.  To  constitute  a  valid  contract,  it  must  be  made  by  parties  competent 

to  contract,  and  be  founded  on  a  sufficient  consideration.  If  the  consider- 
ation be  past  and  executed,  it  can  then  be  enforced  only  upon  the 
ground  that  the  consideration  or  service  was  rendered  at  the  request  of 
the  party  promising.  Carson  v.  Clark,  113 

2.  A  promise  to  pay  for  improvements  made  upon  the  public  lands  will  not 

bind  the  promisor  if  made  after  the  purchase  of  the  same.     Ibid.,     118 

3.  A  mortgage  of  lands  is  not    a  note,  bond,   bill  or  other  instrument  in 

writing,  within  the  meaning  of  the  act  in  relation  to  promissory  notes, 
650 


INDEX;  6ii 

and  a  want  of  consideration,  or  a  failure  of  consideration,  can  not  be 
pleaded  to  a  scire  facias  to  foreclose  a  mortgage.  Hall  etal.  v.  Byrne 
et  al.,  140 

4.  A  promise  made  by  a  vendee  of  public  lands,  after  the  purchase  of  the 

same  of  the  United  States,  to  pay  for  improvements  made  upon  the  same 
previous  to  the  purchase,  is  without  consideration  and  void.  Hut  son  v. 
Over tm f,  170 

5.  In  an  action  of  covenant  for  a  failure  to  convey  lands,  it  is  not  necessary 

to  aver  or  prove  a  consideration.    Buckmaster  v.  Grundy,  810 

6.  A  seal  imports  a  consideration. 

Semble,  That  a  want  of  consideration  may  be  pleaded  to  an  action  upon 
a  bond  for  the  conveyance  of  lands.  Ibid.,  310 

7.  A  promise  by  a  purchaser  of  a  portion  of  the  public  lands  of  the  U.  S., 

made  subsequent  to  his  purchase,  to  pay  for  improvements  made  thereon 
previous  thereto,  is  without  consideration  and  void.  Roberts  v.  Garen; 

395 

8.  A  promise  made  by  a  purchaser  of  a  portion  of  the  public  lands  of  the  U. 

S.,  subsequently  to  the  purchase,  to  pay  for  improvements  made  thereon 
previous  to  the  sale  of  the  same,  is  without  consideration  and  void. 
Townsend  v.  Briggs,  472 

9.  In  an  action  brought  by  P.,  as  assignee  of  M.,  to  recover  the  amount 

of  a  promissory  note  made  by  B. ,  the  Court  gave  the  following  instruc- 
tions to  the  jury:  "That  if  the  jury  believe  from  the  evidence  that  B.  • 
andM.  made  a  lumping  trade;  that  if  B.  agreed  to  give  $615  for  M.'s 
interest,  whatever  it  might  be  (meaning  the  interest  in  the  partnership 
concern  in  which  they  were  both  interested,  and  to  which  the  making  of 
the  note  related),  and  was  not  deceived  or  imposed  on  by  any  false  and 
fraudulent  representations  or  concealments,  then  made  by  M.,  then  the 
note  is  founded  on  a  good  consideration,  and  is  binding  on  B."  Held, 
that  the  instruction  was  correct.  Peck  v.  Boggess,  281 

10.  In  an  action  upon  a  promissory  note  given  for  a  town  lot,  and  assigned 
after    it  became  due,  the  maker,  to  show  that  the  consideration  had 
failed,  offered  to  prove  that  the  payees  of  the  note,  as  proprietors  of  tha 
town  in  which  the  lot  was  situated,  publicly  proclaimed,  on  the  clay  of 
the  sale  of  the  lot.  that  they  would  build  a  store-house  in  the  town,  two 
stories  high,  forty  by  twenty-four  feet,  by  the  1st  of  August  fol lowing 
the  day  of  sale;  and  that  they  would  construct  a  bridge  across  the  Big 
Macoupin,  in  the  said  town;  but  that  they  had  failed  so  to  do:  Held,  that 
it  would  be  no  defense  to  the  note,  and  that  such  proof  would  not  be 
evidence  of  fraud,  unless  it  was  also  shown  that  the  proprietors  of  said 
town  made  such  declarations  deceitfully.     Miller  v.  Howell,         _    499 

11.  A  misrepresentation,  on  the  sale  of  a  tract  of  land,  of  the  quantity  of 
prairie  broken,  and  a  failure  on  the  part  of  the  seller,  to  inform  the 
purchaser  that  there  was  an  unexpired  lease  of  a  portion  of  the  prem- 
ises to  a  tenant,  does  not  constitute  a  fraud  so  as  to  bar  a  recovery  on  a 
note  given  for  the  purchase  of  the  same.     Such  facts  might,  perhaps, 
be  matter  of  defense  to  the  note  in  the  hands  of  the  original  payee,  to 
the  extent  of  the  depreciation,  on  those  accounts,  in  the  value  of  the 
property  sold.     Mill  ford  v.  Shepard,  583 

12.  Before  the  consideration  of  a  negotiable  note  can  be  impeached  in  the 
hands  of  a  bona  fide  indorsee,  the  defendant  must  show  that  the  note 
was  indorsed  after  it  became  due,  or  that  the  indorsee  had  notice  of 
the  want  of  consideration  at  the  time  he  received  it,  or  that  there  was 

fraud  in  obtaining  the  making  of  the  note.     Ibid.,  583 

See  CONTINUANCE,  7;  DEMURRKR;  PROMISE;  PROMISSORY  NOTES. 

CONSTABLE. 

*.  In  an  action  against  a  constable  for  an  escape  upon  a  ca.  sa.,  or  for  neg- 
lecting to  execute  a  ca.  sa.,  proof  on  the  part  of  the  defendant,  that 
the  ca.  sa.  was  issued  upon  the  oath  of  an  agent  of  the  plaintiffs,  is  not 
admissible.  Brother  et  al.  v.  Cannon,  '200 

651 


612  INDEX. 

2.  In  an  action  against  an  officer  for  an  escape  on  process  sued  out.  and 

placed  in  the  officer's  hands  to  execute,  or  man  action  for  a  false  return, 
or  for  a  refusal  to  execute  such  process,  it  is  no  justification  for  suffering 
an  escape,  or  for  making  a  false  return,  or  for  a  refusal  to  execute  such 
process,  that  the  forms  of  law  in  suing  out  such  process  have  not  all  been 
observed.  If  the  process  be  regular  on  its  face,  and  it  be  not  absolutely 
void,  having  been  issued  without  the  authority  of  law,  the  officer  can 
never  be  made  a  trespasser,  although  it  may  have  been  erroneously  is- 
sued; and  he  is  bound  to  execute  the  process,  although  it  may  have  been 
erroneously  sued  out.  Ibid.,  200 

If  the  magistrate  had  jurisdiction  of  the  subject-matter,  the  officer 
was  not  bound  to  inquire  further  into  the  accuracy  of  his  proceedings, 
but  should  have  proceeded  to  obey  the  mandate  of  the  warrant.  Ibid., 

200 

3.  It  can  not  be  denied  that  a  constable  is  liable  where  he  has  willfully  neg- 

lected or  refused  to  execute  lawful  process  issued  upon  a  judgment 
rendered  by  a  justice  of  the  peace,  in  a  case  where  he  had  jurisdiction 
of  the  subject-matter  litigated;  but  to  inforce  this  liability,  it  is  not  only 
necessary  for  the  declaration  to  allege  generally  that  the  magistrate  had 
jurisdiction,  but  it  should  set  out  specifically  the  kind  of  action,  and  ex- 
tent of  the  plaintiff's  claim,  in  order  to  show  to  the  Court  that  the  jus- 
tice had  jurisdiction.  Robinson  v.  Harlan,  237 

4.  A  justice's  court  is  one  of  limited  jurisdiction.     The  statute  is  the  char- 

ter of  its  authority ;  and  whenever  it  assumes  jurisdiction  in  a  case  not 
conferred  by  the  statute,  its  acts  are  null  and  void,  and  the  officer  obey- 
ing its  process  in  such  a  case,  makes  himself  liable.  But  if  the  Court 
has  jurisdiction,  the  officer  is  not  bound  to  inquire  farther;  its  process 
is  sufficient  authority  to  him.  Ibid.,  237 

5.  The  appointment  of  a  constable  pro  tern,  by  a  justice  of  the  peace,  to 

execute  process,  under  §  51  of  the  "  Act  concerning  Justices  of  the  Peace 
and  Constables,'"  must  be  made  by  indorsement  upon  the  back  of  the 
process.  An  appointment  upon  a  separate  piece  of  paper,  is  not  a  com- 
pliance with  the  act.  Gordon  v.  Knapp  etal.,  488 

6.  The  statute  specifies  but  two  cases  in  which  a  justice  of  the  peace  is  au- 

thorized to  appoint  a  constable  pro  tern.  The  one  is  to  execute  criminal 
process,  where  the  accused  is  likely  to  escape;  and  the  other  is  to  execute 
civil  process,  where  goods  and  chattels  are  about  to  be  removed  before 
an  application  can  be  made  to  a  qualified  constable.  In  the  latter  case, 
as  a  prerequisite  to  the  power  of  appointment,  it  must  be  shown  that 
goods  and  chattels  are  about  to  be  removed.  Ibid.,  488 

7.  A  justice  of  the  peace  can  not  appoint  a  constable  pro  tern,  to  serve  a 

summons  or  other  personal  notice,  in  a  civil  suit.  The  statute  refers  to 
an  execution  or  attachment.  Ibid.,  488 

Semble,  that  where  a  justice  of  the  peace,  or  other  inferior  officer,  acts  in  a 
case  where  he  is  not  authorized  to  act,  the  proceedings  are  not  only  ir- 
regular but  void.  Ibid.,  488 

8.  A  constable  who  has  collected  an  execution  issued  upon  a  judgment  re- 

covered in  a  suit  by  attachment,  and  paid  the  money  over  upon  the  or- 
der of  the  plaintiff  in  the  attachment,  is  not  liable  to  an  action  by  the 
attachment  debtor — after  the  reversal  of  such  judgment  on  appeal — for 
the  money  so  collected  and  paid  over.  Nor  is  he  liable  to  a  garnishee 
of  whom  he  has  collected  money  on  such  execution.  Elliot  v.  Sneed, 

517 

9.  Where  a  constable  collected  money  upon  a  judgment  obtained  by  W. 

against  R.,  before  a  justice  of  the  peace,  and  paid  the  same  to  G.,  upon 
the  order  of  E.,  to  whom  the  judgment  was  assigned;  and  afterward 
the  judgment  was  reversed  on  appeal,  and  the  constable  paid  the  money 
back  which  he  had  collected  of  R. :  Held,  that  E.,  the  assignee  of  the 
judgment,  was  not  liable  to  refund  the  money  to  the  constable;  W.  alone 
being  liable.  Ibid.,  5V 

10.  Where  a  constable  collected  money  on  an  execution  issued  upon  a  judg- 

652 


INDEX.  613 

ment  which  was  afterward  reversed,  and  paid  the  same  over  upon  the 
order  of  the  plaintiff;  and  after  the  reversal  ot  the  judgment  the  con- 
stable paid  back  the  money  to  the  defendant:  Held,  that  the  constable 
might  maintain  an  action  against  the  plaintiff  for  money  paid  to  his 
use.  Ibid.,  517 

See  SERVICE  OP  PROCESS,  1,  2,  3. 

CONSTITUTION  OF  THE  UNITED  STATES. 

1.  The  Supreme  Court  of  the  United  States  is  the  proper  and  constitutional 

forum  to  decide,  and  finally  to  determine  all  suits  wherein  is  drawn  in 
question  "the  validity  of  a  statute  of,  or  an  authority  exercised  under 
any  State,  on  the  ground  of  its  being  repugnant  to  the  Constitution, 
treaties,  or  laws  of  the  United  States,  and  the  decision  s  in  favor  of  such 
validity."  Linn  v.  The  State  Bank  of  Illinois,  87 

2.  Where  the  Supreme  Court  of  the  United  States  has  decided  that  a  State 

law  violates  the  Constitution  of  the  United  States,  the  judges  of  the  re- 
spective States  have  no  right  to  overrule  or  impugn  such  decision. 
Ibid.,  87 

3.  The  bills  issued  bjr  the  old  State  Bank  of  Illinois  were  "bills  of  credit  " 

within  the  meaning  of  the  Constitution  of  the  U.  S. :  and  a  note  given 
in  consideration  of  such  bills  is  void  and  can  not  be  collected  by  law. 
Ibid.,  87 

CONSTITUTION  OF  THE  STATE. 
See  CLERK;  CRIMINAL  LAW,  16;  NEGROES  AND  MULATTOES. 

CONTEMPT  OF  COURT. 

See  ADMINISTRATOR,  10. 

CONSTRUCTION  OF  STATUTES. 

1.  Statute  penalties  are  in  the  nature  of  punishments;  and  no  inferior  court 

or  jurisdiction  can  have  cognizance  of  any  penalty  recoverable  under  a 
penal  statute,  unless  jurisdiction  be  given  to  it  in  express  terms.  Bow- 
ers v.  Green,  42 

2.  Statutes  which  treat  of  things  or  persons  of  an  inferior  rank,  can  not  by 

any  general  words  be  extended^  to  those  of  a  superior.  Halletal.v. 
JByin-etaL,  140 

3.  In  the  enactments  of  legislative  bodies,  where  persons  are  spoken  of,  no 

other  than  natural  persons  will  be  intended,  unless  it  be  absolutely  nec- 
essary to  give  effect  to  some  powers  already  conferred  on  artificial  per- 
sons, and  which  it  is  necessary  should  be  exercised  to  carry  into  effect 
the  objects  contemplated  injtheir  grant  or  charter.  Blair  v.  \Vorley,  178 

4.  A  purchaser  of  land  from  the  government  of  the  United  States,  or  of 

this  State,  acquires  the  right  to  all  the  improvements  made  upon  it  an- 
terior to  his  purchase.  The  act  of  February  23,  1819,  giving  the  right 
to  remove  fences  made  by  mistake  upon  the  lands  of  other  persons,  ap- 
plies only  to  natural  persons;  it  has  no  relation  to  a  case  where  a  fence 
is  erected  by  mistake  upon  the  lands  of  the  United  States,  or  of  t^'s 
State.  Ibid.,  H8 

5.  A  proviso  in  a  statute  is  intended  to  qualify  what  is  affirmed  in  the  bou.v 

of  the  act,  section,  or  paragraph  preceding  it.  The  proviso  of  §  3,  Ar- 
ticle 6,  of  the  Constitution  of  the  State  of  Illinois,  does  not  render  the 
persons  therein  named  subject  to  servitude.  Bonn  v.  Juliet,  258 

6.  The  act  of  1807,  of  the  Territory  of  Indiana,  in  relation  to  the  indentur- 

ing and  registering  of  negroes  and  inulattoes,  is  clearly  in  violation  of 
the  Ordinance  of  1787,  and  therefore  void.  Choiftserv.  Hargrove,  317 
**.  A  special  power  granted  by  statute,  affecting  the  rights  of  individuals, 
and  which  divests  the  title  to  real  estate,  ought  to  be  strictly  pursued, 
and  should  so  appear  on  the  face  of  the  proceedings.  Smith  et  al.  v. 
Hileman,  323 

653 


6U  INDEX. 

8.  Courts  will  not  give  to  a  law  a  retrospective  operation,  even  where  they 

might  do  so  without  a  violation  of  the  paramount  law  of  the  Constitution, 
unless  the  intention  of  the  legislature  be  clearly  expressed  in  favor  of 
such  retrospective  operation.  Garrett  v.  Wiggins,  335 

9.  Whore  land  was  sold  for  taxes  under  the  law  of  1827,  and  a  deed  was 

made  to  the  purchaser  in  pursuance  of  such  sale  in  1829,  after  the  repeal 
of  the  law  under  which  the  sale  was  had,  and  after  the  passage  of  a  new 
act  upon  the  same  subject:  Held,  that  the  law  of  1827  must  govern  as  to 
the  effect  of  the  deed.  Ibid.,  335 

10.  It  is  a  settled  principle  of  the  common  law,  that  a  party  claiming  title 
under  a  summary  or  extraordinary  proceeding,  must  show  that  all  the 
indispensable  preliminaries  to  a  valid  sale  which  the  law  has  prescribed 
have  oeen  complied  with.    Ibid.,  335 

11.  A  party  claiming  under  a  deed  given  upon  a  sale  of  lands  for  taxes  by 
the  auditor,  must  show  that  all  the  requirements  of  the  law  in  relation 
to  the  sale  of  lands  for  taxes  have  been  complied  with.    Ibid.,          335 

12.  In  summary  proceedings  under  a  statute,  the  provisions  of  the  statute 
must  be  strictly  complied  with.    Day  v.  Cushman  et  aL,  475 

13.  The  declaration  that  certain  qualifications  are  necessary  to  be  possessed 

by  the  individual,  to  constitute  him  a  juror,  necessarily  disqualifies  the 
person  who  does  not  possess  such  qualifications.  Guykoivski  v.  The 
People,  476 

14.  It  has  been  decided  by  all  American  courts,  that  statutes  take  effect  from 
their  passage,  where  no  time  is  fixed;  and  this  is  now  the  settled  rule 
of  law.     Goodsellet  aL  v.  Boynton  etal.,  555 

15.  The  spring  term  of  the  Cook  Circuit  Court  was  changed  from  March  to 
April,  by  an  act  of  the  2d  of  March,  and  the  judge  being  ignorant  of  the 
change,  held  the  court  in  March.     Issue  was  joined  in  a  cause,  and  the 
same  by  agreement  of  parties  was  submitted  to  the  Court  for  trial.    Judg- 
ment was  rendered  for  the  plaintiffs:  Held,  that  the  proceedings  were 
coram  nonjudice,  and  that  the  judgment  was  illegal  and  void.    Ibid., 

555 

16.  At  common  law,  in  an  action  by  S.  W.  and  H.  L.,  on  a  promissory  note 
made  payable  to  W.  and  L.,  without  mentioning  their  Christian  names, 
the  presumption  would  be  that  the  plaintiff  s,  being  holders  of  the  note, 
were  the  persons  to  whom  the  promise  was  made,  until  the  contrary 
was  shown.     Hollenbackv.  Williams  et  al.,  544 

17.  Under  the  statute  of  March  2,  1839,  in  a  suit  on  a  promissory  note,  it  is 
not  necessary  for  the  holders  to  show  that  they  are  the  persons  described 
in  the  note  as  payees,  by  their  surnames,  where  the  general  issue  is 
pleaded.    Ibid.,  544 

18.  Semble,  That  the  rule  is  the  same,  whether  the  action  was  commenced 
and  plea  filed  befoie  or  since  the  passage  of  the  act.    Ibid.,  544 

See  ADMINISTBATOB;  APPEAL,  7,  8,  9,  11,  15,  16,  17,  18.  21,  27;  CONSTA- 
BLE, 4,  5,  6,  7;  COUNTY;  COVENANT,  6,  7;  COUBTS,  3;  COSTS,  2; 
CBIMINAL  LAW,  4,  5,  16;  DEFAULT,  12;  FEES,  1,  2;  FBAUD;  FOBCI- 
BLE  ENTBYAND  DETAINEB;  IMPBOVEMENTS,  2,  3;  INDICTMENT,  9; 
JURISDICTION,  1,  2,  9,  10, 16;  JUSTICES  OP  THE  PEACE;  NEWTBIAL,  4; 
NOTICE;  PBACTICE;  PLEADING;  PBE-EMPTION;  PBOCESS;  PBOMISSOBY 
NOTES;  PUBLIC  LANDS;  RECOBDS,  4;  RIGHT  OP  PBOPEBTY;  SCHOOL 
FUND;  SECUBITY  FOB  COSTS;  SET-OFF;  SHEBIFF;  SUBVEYOB;  WBIT 
OF  INQUIKY. 

CONTINUANCE  OF  A  CAUSE. 

1.  The  granting  and  refusing  of  continuances  is  a  matter  of  sound  legal  dis- 

cretion, resting  entirely  with  the  Circuit  Court;  and  that  Court  is  to 
judge  whether  the  party  applying  for  a  continuance  has  complied  with 
the  requisitions  of  the  statute;  and  the  decision  of  the  Court  in  such 
cases  can  not  be  assigned  for  error.  Vickers  v.  Hill  et  al.,  3P7 

2.  If  an  exception  exists  to  this  general  rule,  that  exception  is  to  be  confined 

to  the  simple  point  of  the  materiality  of  the  facts  within  the  knowledge 
KA 


INDEX.  615 

of  the  witness,  and  their  tendency  to  prove  the  point  directly  in  issue. 
Mid.,  307 

3.  Where  the  affidavit  shows  that;  only  a  part  of  the  witnesses  have  been 

legally  summoned,  the  plaintiff  may  admit  the  facts  to  be  proved  by  the 
witnesses  legally  summoned,  asset  forth  in  the  affidavit,  and  compel  the 
defendant  to  go  to- trial.  Ibid.,  807 

4.  The  admission  of  an  affidavit  for  a  continuance,  on  the  ground  of  the 

absence  of  a  material  witness,  in  evidence,  is  an  admission  of  the  truth 
of  the  facts  which  the  affidavit  states  can  be  proved  by  such  witness,  and 
they  can  not  be  contradicted.  Willis  v.  The  People.,  "399 

5.  Where  the  Circuit  Court  granted  a  continuance  because  an  account  was 

not  filed  with  the  declaration  on  a  bill  of  exchange,  which  contained  a 
special  count  and  the  common  money  counts,  although  the  declaration 
and  a  copy  of  the  bill  declared  on  were  filed  more  than  ten  days  pre- 
vious to  the  session  of  the  Court,  the  Supreme  Court  granted  a  writ  of 
mandamus  to  the  Judge  of  the  Circuit  Court,  directing  him  to  rescind 
the  order  for  a  continuance,  and  proceed  with  the  cause  upon  the  merits, 
without  requiring  the  plaintiff  to  file  an  account  under  the  money  counts. 
The  People  v.  Pearson,  473,  458 

6.  Where  an  amendment  to  a  declaration  is  of  a  matter  of  substance,  it  en- 

titles the  defendant  tto  a  continuance  of  the  cause.  Covell  et  al.  v. 
Marks,  525 

7.  In  an  action  upon  a  note  of  hand,  the  defendants  pleaded  no  considera- 

tion, and  that  the  note  was  given  in  consideration  of  a  certain  amount  of 
work,  which  the  payee,  the  plaintiff,  alleged  he  had  performed  for  Wa- 
terman and  Rogers,  contractors  on  the  Cumberland  Road,  and  of  an 
agreement  by  the  payee  to  deliver  to  the  defendants  an  order  or  trans- 
fer, to  enable  them  to  draw  from  W.  and  R.  the  pay  for  the  work — W. 
and  R.  being  contractors  upon  the  Cumberland  Road — and  that  the 
payee  never  performed  the  work,  nor  delivered  the  order  or  transfer,, 
whereby  the  defendants  lost  the  benefit  of  the  same.  Lee  et  al,  v. 
Bates,  528 

The  defendants  then  moved  for  a  continuance  of  the  cause,  upon  the  affida- 
vit of  one  of  the  defendants,  stating  that  he  believed  he  could  prove  by 
G.,  who  resided  in  the  county  where  the  suit  was  commenced,  that  G. 
had  in  his  possession  the  contract  for  work  done  by  the  said  plaintiff  for 
W.  and  R.,  and  that  the  plaintiff  had  failed  to  transfer  it  to  the  de- 
fendants. That  he  expected  to  prove  by  W.  and  R.  that  the  plaintiff 
wholly  failed  to  perform  his  contract  with  them,  and  that  they  owed 
him  nothing,  and  that  they  wholly  refused  to  pay  to  the  said  defend- 
ants any  money  on  account  of  the  said  plaintiff,  for  the  said  work; 
and  that  the  affiant  knew  of  no  other  witnesses  by  whom  he  could 
prove  the  same  facts.  That  G.  was  absent  from  the  county  when  the 
writ  was  served  upon  the  defendants,  and  had  not  since  returned. 
That  Waterman  resided  in  St.  Louis,  in  the  State  of  Missouri,  and 
Rogers  in  Greene  county,  in  the  State  of  Illinois;  and  that  from  the 
shortness  of  the  time  between  the  commencement,  of  the  suit  and  the 
session  of  the  Court,  they  had  not  been  able  either  to  procure  W.'s  dep- 
osition, or  the  attendance  of  R.  as  a  witness:  Held,  that  the  affidavit 
was  sufficient,  and  the  defendants  were  entitled  to  a  ".ontinuance. 
Ibid.,  528 

8.  It  is  not  the  duty  of  the  Court  to  order  a  continuance  on  an  affidavit  filed, 

unless  a  motion  is  made  for  such  continuance.  Burlingame  et  al.  v. 
Turner,  588 

CONTRACT. 

1 .  The  laws  in  force  afe  the  time  of  the  making  of  contracts  form  a  portion 

of  their  essence,  and  they  must  be  considered  as  entered  into  with  refer- 
ence to  such  laws,  and  be  so  construed.  Reynolds  v.  Hall  et  al.,  35 

2.  -Where  the  County  Commissioners  of  V.  county  contracted  with  K.,  a 

physician,  to  render  medical  services  to  a  pauper,  but  neglected  to  have 

655 


616  INDEX. 

a  record  made  of  such  contract:  Held,  that  the  contract  might  be  proved 
by  parol  evidence.  Vermilion  County  v.  Knight,  97 

3.  The  County  Commissioners,  when  acting  as  a  court,  can  bind  the  county 

by  their  contracts.    Ibid.,  97 

4.  Where  by  a  contract  G.  and  K.  were  to  build  a  mill  for  C.,  and  four  months 

after  the  contract  should  be  completed,  C.  was  tor  pay  them  $150:  Held, 
that  they  could  not  sustain  an  action  for  the  8150  until  the  expiration 
of  four  months  from  the  time  the  services  were  offered  to  be  performed, 
although  they  were  prevented  from  completing  the  contract  by  the  con- 
duct of  C.  Crocker  v.  Goodsell  et  al.,  107 

5.  Whether  a  written  contract  contains  a  condition  precedent  or  not,  is  a 

question  of  law  for  the  Court  to  decide;  and  it  is  not  a  matter  for  the 
consideration  of  the  jury.-  Ibid.,  107 

6.  To  constitute  a  valid  contract,  it  must  be  made  by  parties  competent  to 

contract  and  be  founded  on  a  sufficient  consideration.  If  the  considera- 
tion be  past  and  executed,  it  can  then  be  enforced  only  upon  the  ground 
that  the  consideration  or  service  was  rendered  at  the  request  of  the  party 
promising.  Carson  v.  Clark,  113 

7.  A  promise  to  pay  for  improvements  made  upon  the  public  lands,  will  not 

bind  the  promisor  if  made  after  the  purchase  of  the  same.    Ibid.,      113 

8.  A  purchaser  of  land  from  the  government,  is  under  no  moral  or  legal 

obligation  to  pay  for  improvements  made  thereon  before  his  purchase, 
and  without  his  request.  Ibid.,  113 

9.  One  man  can  not,  by  his  own  voluntary  act,  make  himself  the  creditor  of 

another.     Dedman  v.   Williams,  154 

10.  A  promise  made  by  a  vendee  of  public  lands,  after  the  purchase  of  the 
same  of  the  United  States,  to  pay  for  improvements  made  upon  the 
same   previous  to    the    purchase,   is  without  consideration  and  void. 
Hutson  v.  Overturf,  ^  170 

11.  The  statute  of  1831,  in  relation  to  the  sale  of  improvements  upon  public 
lands,  has  no  application  to  a  promise  made  by  a  purchaser  of  a  portion 
of  such  lands  after  such  purchase,  to   pay  for   improvements    made 
upon  the  same  while  it  belonged  to  the  United  States.     It  applies  only 
to  contracts  respecting  the  sale  of  improvements  which  at  the  time  the 
contract  is  entered  into  are  on  the  lands  owned  by  the  government. 
Ibid.,  170 

12.  An  agreement  to  attend  a  public  land  sale  of  the  United  States,  and  pur- 
chase a  tract  of  land,  is  not  fraudulent  or  against  the  laws  of  the  U.  S. 
Pearsons  v.  Lee,  193 

13.  A  parol  contract,  for  the  purchase  of  land,  is  not  absolutely  void,  but  only 
voidable  under  the  statute  of  frauds.     Whitney  v.  Cochran  et  al.,      209 

14.  The  law  is  well  settled,  that  where  there  is  a  written  contract  to  per- 
form a  particular  piece  of  work,  and  the  workman  performs  a  part  of 
the  work,  and  is  prevented  from  finishing  it  by  the  other  party,  that  he 
may  treat  the  contract  as  rescinded,  and  recover  the  value  of  his  labor 
in  an  action  of  assumpsit.     Butts  v.  Huntley,  410 

15.  In  order  to  sustain  an  action  to  recover  pay  for  improvements  made 
upon  the  public  lands,  all  that  it  is  necessary  for  the  plaintiff  to  prove 
is.  that  the  defendant  promised  expressly  to  pay  for  the  improvements. 
If  the  price  to  be  paid  be  not  agreed  on,  the  contract  is  binding,  and  the 
value  of  the  improvements  must  be  ascertained  by  proof.    Johnson  \. 
Moulton,  532 

16.  Where  a  contract  is  joint,  and  only  one  of  the  makers  are  sued,  the  non- 
joinder of  the  other  parties  can  be  taken  advantage  of  only  by  plea  in 
abatement.     Lurton  v.  Gillwm  et  al.,  577 

17.  Where  B.  and  L.  purchased  a  piece  of  cloth  at  a  store  on  credit,  and  at 
the  time  of  the  purchase  a  memorandum  was  made  as  follows:     "If 
Mr.  Douglas  is  elected  to  Congress,  Brown  is  to  pay  for  the  cloth;  if 
Mr.  Stuart  is  elected,  James  Lurton  has  it  to  pay."    Held,  that  the 
contract  was  in  severalty.     Held,  also,  that  the  contract  for  the  sale,  of 
the  cloth  was  valid,  and  was  not  tainted  by  the   bet  of  B.   and  L. 
Ibid.,  577 

656 


INDEX.  617 

See  INTEREST,  5,  6,  7,  8  ;  LEX  Loci ;  PROMISSORY  NOTE  :  SPECIFIC  PER- 
FORMANCE ;  SURETY. 

CONVEYANCE. 

See  COUNTY  COMMISSIONERS,  5,  6  ;  COVENANT  j  DEED  ;  GOODS  AND  CHAT- 
TELS. 

CORPORATIONS. 

1.  In  the  enactments  of  legislative  bodies,  where  persons  are  spoken  of,  no 
other  than  natural  persons  will  be  intended,  unless  it  be  absolutely 
necessary  to  give  effect  to  some  powers  already  conferred  on  artificial 
persons,  and  which  it  is  necessary  should  be  exercised  to  carry  into 
effect  the  objects  contemplated  in  their  grant  or  charter.  Blair  v.  War- 
ley,  178 

COSTS. 

1.  A  judgment  for  costs  can  not  be  rendered  against  an  administrator  in 

his  personal  character.  Church  et  aL  v.  Jewett  et  al.  55  ;  Bailey  v. 
Campbell,  110 

2.  The  statute  exempts  the  old  State  Bank  from  the  payment  of  costs  ;  and 

persons  who  have  acted  merely  ministerially  for  the  bank,  as  agents, 
are  not  liable  for  costs.  Duncan  et  al.  v.  State  Bank  of  Illinois  et  al., 

262 

3.  On  an  issue  in  fact  the  defendant  is  entitled  to  costs,  but  not  on  an  issue 

in  law.     McKinstry  v.  Pennoyer  et  al.,  319 

4.  Where  a  cause  is  dismissed  upon  motion  of  the  plaintiff,  it  should  be  at 

his  costs.     Kinman  v.  Bennett,  326 

See  ALIMONY  ;  SECURITY  FOR  COSTS. 

COURTS  OF  PROBATE. 
See  ADMINISTRATOR,  2,  3,  7,  8,  9, 10  ;  JURISDICTION. 

COURTS. 

1.  When  a  party  comes  into  a  court  of  justice,  it  is   incumbent  upon  him 

to  exhibit  a  right  to  recover,  in  clear  and  legal  language,  otherwise 
the  court  can  not  grant  the  relief  sought.  Davenport  et  al.  v.  Farrar, 

314 

2.  The  doctrine  of  discretion  in  the  Circuit  Court  ought  not  to  be  carried 

too  far;  and  this  Court  will  not  extend  it  beyond  previous  decisions. 
McKinstry  v.  Pennoyer  et  al.,  319 

3.  The  criminal  jurisdiction  of  the  Municipal  Court  of  the  City  of  Chicago 

is  confined  to  the  territorial  limits  of  said  city.     Bell  v.  The  People, 

397 

4.  It  has  been  decided  by  all  American  courts,  that  statutes  take  effect  from 

their  passage,  where  no  time  is  fixed;  and  this  is  now  the  settled  rule  of 
law.  Goodsell  et  al.  v.  Boynfon  et  al.,  555 

5.  The  spring  term  of  the  Cook  Circuit  Court  was  changed  from  March  to 

Apnl,  by  an  act  of  the  2d  of  March,  and  the  judge  being  ignorant  of 
the  change,  held  the  Court  in  March.  Issue  was  joined  in  a  cause,  and 
the  same,  by  agreement  of  parties,  was  submitted  to  the  Court  for  trial. 
Judgment  was  rendered  for  the  plaintiffs:  Held,  that  the  proceedings 
were  coram  noniudice,  and  that  the  judgment  was  illegal  and  void. 
Ibid.,  555 

See  CLERK;  DISCRETION;  JURISDICTION;  PRACTICE. 
COUNTY. 

1.  A  county  is  not  bound  to  pay  interest  on  county  orders.  Madison  County 
et  al.  v.  Bartlett,  67 

Voi_  1-42  637 


618  INDEX. 

2.  A  county  order  "  for  816.50  or  its  equivalent  in  State  paper,"  is  an  order 

for  816. 50,  or  so  many  State  paper  dollars  as  will  amount  to  that  sum  at 
their  current  value.  Ibid.,  67 

3.  Statutes  defining  the  boundaries  of  counties  are  public  acts,  and  courts 

are  bound  judicially  to  take  notice  of  them.  In  an  action  of  trespass 
quare  clausum  fregit,  proof  that  the  trespass  was  committed  upon  the 
premises  described  in  the  declaration,  by  the  number  of  the  section, 
township  and  range  (the  said  premises  being  in  the  proper  county),  is 
sufficient  without  evidence  that  the  premises  are  situated  in  the  county 
where  the  action  is  brought.  Ross  et  al.  v.  Jieddick,  73 

4.  A  county  treasurer  has  no  authority  whatever  to  take  a  note  payable  to 

himself  as  treasurer;  nor  has  he  any  authority  to  assign  or  transfer  such 
a  note.  Berry  v.  Hornby,  468 

5.  A  suit  can  not  be  maintained  in  the  name  of  a  county  treasurer.    Sed 

quere.     Ibid.,  468 

6.  Quere,  Whether  an  action  in  the  name  of  the  county  can  be  maintained 

upon  a  note  payable  to  the  county  treasurer.    Ibid.,  468 

COUNTY  ORDERS. 
See  COUNTY,  1,  2. 

COUNTY  SURVEYOR. 
See  SURVEYOR. 

COUNTY  TREASURER. 
See  COUNTY. 

COUNTY  COMMISSIONERS. 

1.  Where  the.  county  commissioners  of  V.  county  contracted  with  K.,  a  phy- 

sician, to  render  medical  services  to  a  pauper,  but  neglected  to  have  a 
record  made  of  such  contract:  Held,  that  the  contract  might  be  proved 
by  parol  evidence.  Vermilion  County  v.  Knight,  97 

2.  It  is  not  necessary  for  a  party  who  has  rendered  aid  to  a  person  acknowl- 

edged as  a  pauper  by  the  county  commissioners,  and  at  their  request, 
to  prove  that  such  person  was  actually  entitled  to  aid  under  the  laws 
providing  for  the  support,  of  the  poor.  Ibid. .  97 

3.  The  County  Commissioners'  Court  has  no  jurisdiction  to  determine  civil 

causes  between  individuals  or  corporations.     Ibid.,  97 

4.  The  county  commissioners,  when  acting  as  a  court,  can  bind  the  county 

by  their  contracts.   .Ibid.,  97 

5.  Before  the  passage  of  the  act  of  1835,  county  commissioners  had  no  au- 

thority to  convey  the  real  estate  of  their  county.  Williams  v.  Claytor 
et  al.,  502 

6.  The  act  of  1835,  makes  valid  conveyances  made  before  that  time  by 

county  commissioners ;  and  a  deed  -of  the  real  estate  of  the  county,  exe- 
cuted by  the  county  commissioners,  in  their  individual  names,  and  "un- 
der their  private  seals,  as  county  commissioners  in  behalf  of  the 
county,"  is  made  valid  and  effectual  to  pass  the  estate  therein  conveyed. 
Ibid.,  502 

COVENANT. 

1.  In  an  action  of  covenant  for  a  failure  to  convey  lands,  it  is  not  necessary 

to  aver  or  prove  a  consideration.     Buckmaster  v.  Grundy,  310 

2.  In  an  action  of  covenant  for  failing  to  convey  lands  agreeably  to  contract, 

the  value  of  the  lands  at.  the  time  they  were  to  have  been  conveyed,  is 
the  true  measure  of  damages.  Ibid.,  f  310 

3.  In  cases  of  independent  covenants,  a  plea  of  readiness  to  perform  without 

averring  an  offer  of  performance,  is  bad,  and  furnishes  no  excuse  for 
the  non-performance.  Ibid.,  310 

.58 


INDEX.  619 

4.  A  seal  imports  a  consideration.    Ibid.,  310 

5.  Semble,  That  a  want  of  consideration  may  be  pleaded  to  an  action  upon 

a  bond  for  the  conveyance  of  lands.    Ibid.,  310 

6.  The  plea  of  now  est  factum  may  be  interposed  in  an  action  of  covenant, 

without-  being  verified  by  affidavit ;  and  under  it  the  defendant  may 
avail  himself  of  any  legal  defense  that  he  could  have  done  at  common 
law,  except  merely  denying  or  disproving  the  execution  of  the  instrument 
declared  on.  Longley  etal.  v.  Norvall,  389 

7.  In  an  action  of  covenant  there  is  no  plea  which  can  strictly  be  termed  the 

general  issue  ;  but  the  general  issue  in  debt  is  correctly  used  to  answer, 
under  the  statute,  the  same  end  it  does  in  debt.  Ibid.,  389 

See  ACTION,  11 ;  ASSIGNMENT,  1,2;  VENDOR. 

CREDITOR. 

1.  One  man  can  not,  by  his  own  voluntary  act,  make  himself  the  creditor  of 
another.    Dedman  v.  Williams,  154 

CRIMINAL  LAW. 

1.  Perjury  consists  in  false  swearing  to  a  fact  material  to  the  point  in  issue, 

before  a  tribunal  having  legal  authority  to  inquire  into  the  cause  or 
matter  investigated.  Pankey  \.  The  People,  80 

2.  Acts  of  official  misconduct  by  justices  of  the  peace,  done  with  corrupt  mo- 

tives, are  indictable  offenses.     Wickersham  v.  The  People,  128 

3.  Where  the  defendant  pleaded  guilty  to  an  indictment  for  burglary,  and 

the  Court  sentenced  him  to  be  imprisoned  in  the  penitentiary  for  eighteen 
months  :  Held,  that  the  proceedings  were  regular.  Blevings  v.  The 
People,  172 

4.  The  words  "in  all  cases,"  in  §  158  of  the  Criminal  Code,  apply  only  to 

all  cases  tried  by  a  jury.    Ibid.,  172 

5.  Where  a  prisoner   pleads   guilty  on  an  indictment   for  burglary,  the 

Court  should  fix  the  time  for  which  he  is  to  be  confined  in  the  peniten- 
tiary. Ibid.,  172 

6.  A  writ  of  error  does  not  lie  in  behalf  of  the  people,   to  reverse  the 

decision  of  a  Circuit  Court  in  a  criminal  case.     The  People  v.  Dill, 

257 

7.  Nothing  can  be  taken  by  implication  in  a  criminal  case.   Highland  v.  The 

People,  392 

8.  Certainty,  in  criminal  proceedings,  where  attainable,  will  not  be  dis- 

pensed with.     Willis  v.  The  People,  399 

9.  On  a  trial  for  larceny,  the  jury  should  find  the  value  of  the  property 

stolen,  otherwise  the  Court  can  not  pass  sentence  upon  the  prisoner. 
Highland  v.  The  People,  392 

10.  Where  the  verdict  of  the  jury  in  a  trial  for  larceny  was,  "  We,  the  jury, 
find  the  defendant  guilty,  and  sentence  him  to  the  penitentiary  for  the 
term  of  three  years,"  and  a  motion  was  made  in  arrest  of  judgment,  be- 
cause the  value  of  the  property  stolen  was  not  stated  in  the  verdict: 
Held  that  the  defect  was  fatal,  and  that  the  judgment  should  have  been 
arrested.    Ibid.,  392 

1 1 .  The  propriety  of  introducing  affidavits  in  criminal  cases  is  not  sanctioned. 

Willis  v.  The  People,  399 

12.  The  Circuit  Court  may  set  aside  a  defective  verdict,  and  award  a  venire 
de  novo,  in  a  criminal  case,  where  the  facts  found  are  so  defective  that 
no  judgment  can  be  rendered  upon  such  verdict.     Lawrence  et  al.  v. 
The  People,  414 

13.  Where  A.  B,  C  and  D  were  jointly  indicted  in  the  Edgar  Circuit  Court, 
and  A  alone  moved  for  and  obtained  a  change  of  venue  to  the  Clark  Cir- 
cuit Court,  without  the  consent  of  the  others,  where  he  was  tried;  and 
after  his  trial  the  indictment,  without  any  order  of  court,  was  returned 
to  the  Edgar  Circuit  Court,  and  B,  C  and  D  called  upon  to  plead  to  the 
same:  Held,  that  the  proceedings  were  regular,  and  that  the  indict- 

669 


620  INDEX. 

ment  as  to  B,  C  and  D,  must  be  considered  as  remaining  under  the  con- 
trol of  the  Edgar  Circuit  Court,  and  that  no  trial  could  be  had  elsewhere. 
The  Circuit  Court  of  Clark  county  should  have  ordered  the  original  in- 
dictment to  be  returned  to  Edgar  county,  and  retained  a  copy  thereof 
upon  its  own  records.  Hunter  etal.  v.  The  People,  453 

14.  In  a  criminal  cause  the  accused  stands  on  all  his  rights,  and  waives  noth- 
ing which  is  irregular,  and  more  especially  so  when  life  is  in  question. 
Guykowski  v.  The  People,  476 

15.  The  affidavit  of  a  prisoner,  upon  a  motion  for  a  new  trial,  is  prima  facie 
evidence  of  the  truth  of  the  statements  it  contains.     Ibid.,  476 

Semble,  That  the  affidavit  of  a  juror  in  support  of  the  verdict,  on  a  point  en- 
tirely disconnected  with  his  acts  or  the  motives  for  his  conduct,  may  be 
admitted  on  a  motion  for  a  new  trial.  Ibid.,  476 

16.  Every  taking  of  the  property  of  another,  without  his  knowledge  or  con- 
sent, does  not  amount  to  larceny.     To  make  it  such,  the  taking  must  be 
ac  ompanied  by  circumstances  which  demonstrate  a  felonious  intention. 
Smith  v.  Shultz,  490 

17.  The  provision  in  Article  8,  §  11,  of  the  Constitution  of  the  State  of  Illi- 
noisj  "  That  no  person  shall  for  the  same  offense  be  twice  put  in  jeopardy 
of  his  life  or  limb,"  prohibits  the  State  from  bringing  a  writ  of  error 

•.     where  a  person  accused  of  a  crime  is  acquitted  in  the  Court  below.    The 
People  v.  Royal,  557 

See  GRAND  JTJRY;  EVIDENCE,  29,  30;  INDICTMENT;  PRACTICE,  73;  VENUE. 

DAMAGES. 

1.  A  writ  of  inquiry  is  never  necessary  where  the  damages  can  be  ascertained 

by  computation.     Clemson  et  aL  v.  State  Bank  of  Illinois,  45 

2.  Interest  is  the  legal  damages  or  penalty  for  the  unjust  detention  of 

money.    Madison  County  et  al.  v.  Bartlett,  67 

3.  Where  judgment  is  rendered  for  the  plaintiff  on  demurrer  to  the  defend- 

ant's plea,  the  plaintiff  may  have  an  inquest  to  ascertain  the  damages, 
or  he  may  waive  this  and  take  judgment  for  nominal  damages.  Boon 
v.  Juliet,  258 

4.  In  an  action  of  covenant  for  failing  to  convey  lands  agreeably  to  contract, 

the  value  of  the  lands  at  the  time  they  were  to  have  been  conveyed  is 
the  true  measure  of  damages.  Buckmaster  v.  Grundy,  310 

5.  In  an  action  of  assumpsit,  it  is  erroneous  to  enter  up  a  judgment  for  debt 

and  damages.    Lyon  v.  Barney,  387 

6.  Where,  in  an  action  of  debt,  a  judgment  for  damages  is  rendered,  the 

judgment  will  be  reversed;  but  the  error  will  be  corrected  in  this  Court, 
and  such  a  judgment  given  as  the  Court  below  should  have  rendered. 
Guild  et  al.  v.  Johnson,  405 

7.  Under  §  17  of  the  practice  act,  unliquidated  damages  arising  ex  contractu, 

may  be  set  off  in  an  action  of  assumpsit.  The  rule  was  different  under 
the  act  of  1819.  Edtoards  et  al.  v.  Todd,  462 

8.  Where  the  plaintiff  brought  an  action  of  assumpsit  to  recover  the  amount 

of  freight  agreed  to  be  paid  by  the  defendants  for  the  transportation  of 
their  goods  from  Buffalo  to  Chicago,  and  the  defendants  pleaded  the 
general  issue,  and  gave  notice  of  their  intention  to  give  in  evidence 
under  that  plea,  that  a  portion  of  the  goods  agreed  to  be  transported, 
exceeding  in  value  the  whole  amount  of  the  freight  claimed,  was, 
through  the  negligence,  carelessness,  and  improper  conduct  of  the 
plaintiff,  lost  and  destroyed  on  the  voyage;  and  on  the  trial  offered  to 
introduce  such  evidence,  first,  by  way  of  set-off,  and  secondly,  by  way 
of  reducing  the  damages  claimed :  Held,  that  the  evidence  was  ad- 
missible as  well  as  a  set-off,  as  in  reduction  of  damages.  Ibid.  462 

9.  Where  matters  of  law  and  fact  are  both  submitted  to  the  Court  for  trial, 

and  a  jury  waived,  it  is  competent  for  the  Court,  after  having  found  the 
issues  for  the  plaintiff,  to  direct  the  clerk  to  assess  the  damages  on  a 
promissory  note.  Burlingame  et  al.  v.  Turner,  588 

660 


INDEX.  621 

DEBT. 

1.  Debt  is  the  proper  action  to  bring  for  a  violation  of  an  ordinance  of  an 
incorporated  town.    Israel  et  al.  v.  Town  of  Jacksonville,  290 

DEEDS. 

1.  Deeds  or  obligations,  containing  mutual  covenants,  are  not  assignable. 

Beezley  v.  Jones,  34 

2.  A  deed  made  upon  valuable  consideration  does  not  come  within  the 

provisions  of  the  statute  of  frauds  and  perjuries.  Thornton  v.  Davenport 
etal.,  296 

3.  Whatever  may  be  the  practice  in  England,  the  purchaser  here  is  not 

bound  to  prepare  and  tender  a  deed  to  the  vendor,  unless  such  obligation 
can  be  fairJy  inferred  from  the  terms  of  the  contract.  Buckmaster  v. 
Grundy,  310 

4.  §  6  of  the  act  of  1827  required  that  an  administrator's  deed  of  real  estate, 

should  set  forth  "  at  large  the  order  of  the  Circuit  Court  directing  the 
sale."  A  recital  of  the  substance  of  such  order  is  not  a  compliance 
with  the  act.  Smith  etal.  v.  Hileman,  323 

5.  An  administrator's  deed  under  the  act  of  1827,  which  does  not  contain 

the  order  "  at  large,"  for  the  sale  of  the  premises,  is  insufficient,  and 
can  not  be  received  as  evidence  in  an  action  of  ejectment,  to  support 
the  title  of  the  grantee  in  such  deed.  Ibid.,  323 

6.  A  party  claiming  under  a  deed  given  upon  a  sale  of  lands  for  taxes  by  the 

auditor,  must  show  that  all  the  requirements  of  the  law  in  relation  to 
the  sale  of  lands  for  taxes  have  been  complied  with.     Garrett  v.    Wig- 
gins, 335 
See  COUNTY  COMMISSIONERS;  CONSTRUCTION  OF  STATUTES. 

DEFAULT. 

1.  If  judgment  be  rendered  by  default  against  a  defendant  who  has  not  been 

served  with  process,  the  proceedings  are  coram  nonjudice.  But  the  re- 
versal of  such  a  judgment  does  not  affect  the  rights  of  the  plaintiff  be- 
low. Ditch  v.  Edwards,  127;  Garrett  \.  Phetps,  331 

2.  An  application  to  set  aside  a  default  is  addressed  to  the  sound  discretion 

of  the  Court,  and  no  writ  of  error  will  lie  to  correct  its  exercise.  It  is 
too  late  to  make  an  application  to  set  aside  a  default  after  one  term  of 
the  Court  has  intervened  between  the  term  at  which  the  default  was 
taken,  and  that  at  which  the  motion  was  made.  Garner  et  al.  v.  Cren- 
shate,  143 

3.  A  defendant  by  suffering  judgment  to  go  by  default,  is  out  of  Court, 

and  has  no  right  to  except  to  testimony.  He  is  however  permitted  to 
cross-examine  the  witnesses,  but  he  can  not  introduce  testimony,  or  make 
a  defense  to  the  action.  Should  improper  testimony  or  wrong  instruc- 
tions be  given,  the  proper  course  is  to  apply  to  the  Court  to  set  aside  the 
inquisition,  and  grant  a  new  inquest.  Morton  v.  Bailey  et  al.t  213 

4.  Where,  after  pleading,  a  defendant  stipulated  that  judgment  might  go  as 

by  default,  on  his  failure  to  file  a  paper  on  a  given  day;  and  on  such 
failure,  judgment  by  default  was  entered  notwithstanding  the  plea: 
Held,  that  there  was  no  error.  Foster  v.  Filley,  256 

5.  The  Supreme  Court  will  not,  on  motion,  set  aside  a  default,  and  vacate  a 

judgment  of  a  Circuit  Court.     Aiken  v.  Deal,  327 

6.  A  judgment  by  default  is  irregular,  unless  it  appear,  by  a  return  on  the 

process,  that  it  had  been  served,  and  on  what  day  service  was  made. 
Garrett  v.  1'helps,  331 

7.  The  reversal  of  a  judgment  by  default,  where  process  from  the  Court  be- 

low had  not  been  served  on  the  defendant  in  that  Court,  does  not  preju- 
dice any  future  proceedings.  Ibid.,  331 

8.  An  application  to  set  aside  a  default  is  addressed  to  the  sound  dircretion 

of  the  Court,  and  the  manner  of  the  exercise  of  that  discretion  can  not 
be  assigned  for  error.  Harmison  v.  Clark  et  al.t  131;  Wallace  \. 
Jerome,  524 

661 


622  INDEX. 

9.  It  is  error  to  take  judgment  by  default,  where  a  plea  is  filed  to  the  dec- 
'  laration  or  petition.     McKinney  v.  May,  534;    Covell  et  al.  v.  Marks, 

391 

10.  The  exercise  of  the  power  to  grant  or  refuse  an  application  to  set  aside 
a  default  and  permit  the  defendant    to  plead,  as  also  the  granting  or 
refusing  of  a  motion  for  a  new  hearing,  is  a  matter  of  sound  legal  dis- 
cretion; and  the  Supreme  Court  can  not  interfere  with  the  exercise  of 
that  discretion  by  the  Circuit  Court.  Gillet  et  al.  v.  Stone  et  al.,      539 

11.  The  statute  of  July,  1837,  does  not  extend  to  motions  to  set  aside  de- 
faults.    Ibid.;  Wallace  v.  Jerome,  524 

12.  After  a  plea  of  not  guilty  has  been  filed,  putting  a  cause  at  issue,  the 
Court  can  not,  on  calling  of  the  defendants,  render  a  judgment  by  de- 
fault; a  jury  should  be  impaneled,  and  a  trial  had,  in  the  same  man- 
ner as  if  the  defendants  had  answered  when  called.    Manlove  et  al.  v. 
Bruner,  390 

13.  Where  an  action  of  assumpsit  is  commenced  against  several,  only  one 
of  whom  pleads  to  the  action,  and  the  default  of  the  others  is  entered, 
it  is  erroneous  to  take  final  judgment  against  them  until  the  issue  as 
to  the  defendant  who  pleads  is  disposed  of.      Russell  et  al.  v.  Hogan 
et  al.,  552 

14.  In  an  action  ex  contractu  against  several  defendants,  the  judgment  is  a 
unit;  it  must  be  rendered  against  all  or  none.  The  cause  can  not  be  con- 
tinued as  to  one  who  has  pleaded,  and  final  judgment  rendered  against 
the  others.    Ibid.,  552 

DEMURRER  TO  EVIDENCE. 

1.  A  variance  between  the  agreement  declared  on,  and  the  declaration 

should  be  taken  advantage  of  on  the  trial  by  a  demurrer  to  evidence,  or 
a  motion  for  a  non-suit.  Pearsons  v.  Lee,  193 

2.  The  course  to  be  pursued  in  a  case  tried  by  the  Court  without  a  jury, 

where  the  defendant  supposes  that  the  plaintiff  has  failed  to  support  his 
action,  is  to  move  the  Court  to  non-suit  the  plaintiff,  or  to  demur  to  the 
testimony.  If  he  does  neither,  and  goes  on  and  gives  evidence,  the 
office  of  the  judge  is  then  completely  merged  into  that  of  a  juror,  and 
his  decision,  if  wrong,  can  only  be  reviewed  in  the  same  manner  as  the 
wrong  verdict  of  a  jury,  to  wit,  by  application  for  a  new  trial.  Gilmore 
v.  Ballard,  252 

DEPOSITIONS. 

1.  It  is  a  valid  objection  to  a  deposition  that  it  was  dictated  or  written  by 

an  attorney  in  the  cause ;  but  the  objection  must  be  supported  by  proof 
of  the  fact.  King  v.  Dale,  513 

2.  Where  a  deposition  is  read  in  evidence  which  proves  nothing  for  either 

party,  the  Court  will  not  inquire  whether  it  was  properly  admitted. 
Ibid.,  513 

DESCENT. 
See  ESTATES. 

DETINUE. 

1.  The  action  of  detinue  is  an  unusual  action,  and  the  books  furnish  but  few 

rules  of  evidence  applicable  to  it.  Great  certainty  and  accuracy  in  the 
description  of  the  things  demanded  is  still  required  in  detinue.  Felt 
v.  Williams,  206 

2.  A  declaration  in  detinue  for  "a  red  cow  with  a  white  face,"  is  not  sup- 

ported by  proof  that  "the  cow  was  a  yellow  or  sorrel  cow."    Ibid., 

206 


662 


DEVASTAVIT. 
See  ADMINISTRATOR  AND  EXECUTOR,  5,  6. 


INDEX.  623 

DEVISE. 

1.  Where  A.  devised  land  to  C.,  to  take  effect  on  the  death  of  the  wife  of 

A.,  on  condition  that  C.  would  become  bound  to  and  live  with  A.'s 
wife  until  C.  should  be  married,  evidence  of  the  declarations  of  the 
wife  of  A.  that  she  did  not  desire  C.  to  be  bound  to  her,  is  relevant  and 
proper.  If  A.'s  wife  voluntarily  dispense  with  the  performance  of  the 
condition,  the  estate  will  take  effect.  Jones  et  al.  v.  Bramblet  el  al., 

276 

2.  If  there  be  two  devises  in  a  will  of  the  same  property  to  two  different 

persons,  and  the  first  create  an  estate  of  inheritance,  the  second  devise 
without  words  of  perpetuity,  will  not  destroy  the  first,  and  will  create 
a  life  estate  only,  with  reversion  in  the  heirs  of  the  first  devisee.  Ibid., 

276 

See  ESTATES. 

DISCRETION. 

1.  Where  the  legislature  directs  an  inferior  court  as  to  the  mode  of  en- 

forcing its  orders  or  decrees,  such  court  possesses  no  discretion,  but  must 
proceed  conformably  to  the  mode  prescribed.  Piggott  v.  Ramey  et  al., 

145 

2.  The  doctrine  of  discretion  in  the  Circuit  Court  ought  not  to  be  carried 

too  far;  and  this  Court  will  not  extend  it  beyond  previous  decisions. 
McKinstry  v.  Pennoyer  et  al.,  319 

See  APPEAL,  19,  20,  29;  BAIL;  CONTINUANCE;  DEFAULT,  2,  8,  10;  NEW 
TBIAL;  PLEADING,  29,  40;  RIGHT  OP  PROPERTY,  11;  VENUE,  3. 

DIVORCE. 
See  ALIMONY. 

DOCKETING  CAUSES. 
See  APPEAL,  4. 

DOWER. 

1.  A  widow  can  only  be  endowed  of  estates  of  inheritance.    Davenport  et 

al.  v.  Farrar,  314 

2.  A  pre-emption  right  is  not  an  estate  of  which  a  widow  can  be  endowed. 

Ibid.,  314 

3.  The  statute  making  equitable  estates  subject  to  dower,  clearly  refers  to 

equitable  estates  of  inheritarce  only.    Ibid.,  314 

4.  The  words  owner  and  proprietor  are  insufficient  in  a  petition  for  dower, 

as  descriptive  of  the  estate  of  the  deceased  husband  of  the  petitioner. 
They  do  not  technically,  nor  by  common  usage,  describe  an  estate  in 
fee  simple,  or  fee  tail.  Ibid.,  314 

5.  When  a  party  comes  into  a  court  of  justice,  it  is  incumbent  upon  him  to 

exhibit  a  right  to  recover,  in  clear  and  legal  language,  otherwise  the 
court  can  not  grant  the  relief  sought.  Ibid.,  314 

6.  A  petition  for  dower  should  state  such  facts  as  would  show  that  the  hus- 

band of  the  petitioner  was  possessed  of  such  an  estate  as  is  contemplated 
by  the  statute.  Ibid.,  314 

7.  Semble,  That  in  order  to  bar  the  wife's  right  of  dower,  she  should  be 

made  a  party  defendant,  in  a  scire  facias  to  foreclose  a  mortgage. 
Gilbert  et  al.  v.  Muggord,  471 

EJECTMENT. 

1.  A  patent  can  not  be  impeached  by  parol,  in  an  action  of  ejectment. 

Bruner  v.  Manlove  et  al.,  156 

2.  In  an  action  of  ejectment,  where  the  judgment  of  the  Circuit  Court  is  for 

003 


624  INDEX. 

premises  not  described  in  the  declaration,  the  judgment  will  bfl  re- 
versed.    Bciithy  v.  Hrniriifon,  240 
8.  An  action  of  ejectment  can  be  maintained  against  a  military  officer,  in 
the  occupation  of  lands,  as  such.     McConnell  \.  Wilcox,                   344 

4.  The  law  of  the  State  where  the  land  is  situated   is  to  govern  both  as  to 

the  form  of  the  remedy,  and  the  evidence  of  title.  Ibid.,  344 

5.  The  United  States  could  not  be  a  defendant  in  a  State  Court  to  any  action 

whatever,  such  Court  having  no  jurisdiction  over  her;  and  consent  could 
not  give  it.  And  although  it  is  certainly  true  that  the  tenant,  in  all 
actions  of  ejectment,  may  defend  himself  by  showing  the  title  of  his 
landlord,  it  does  .not  follow  that  the  party  who  could  not  be  a  defendant 
for  want  of  jurisdiction  in  the  Court  over  him,  may  defend  himself  in 
such  case  in  the  name  of  a  person,  who,  upon  no  reasonable  supposition, 
could  be  considered  as  standing  in  the  relation  of  a  tenant.  Ibid.,  344 

6.  In  an  action  of  ejectment,  the  plaintiff,   to  support  his  title,  read  in  evi- 

dence a  deed  from  one  Wheelock  and  wife  to  one  Claytor,  from  whom 
the  lessors  of  the  plaintiff  derived  title  to  the  premises  described  in  his 
declaration,  and  the  defendant  read  in  evidence  a  decree  of  the  Adams 
Circuit  Court,  sitting  as  a  court  of  chancery,  made  in  a  case  wherein 
Archibald  Williams,  administrator,  etc.,  was  complainant,  which  re- 
scinded and  set  aside  the  deed  to  said  Claytor,  and  the  deed  to  the  les- 
sors of  the  plaintiff,  and  directed  that  a  special  execution  issue  to  the 
sheriff  of  Adams  county,  against  sai<?  Wheelock.  as  the  trustee  of  one 
Hynes,  to  sell  the  premises  descnbet  in  the  plaintiff's  declaration,  for 
the  satisfaction  of  the  judgment  and  x>sts  in  favor  of  said  Williams,  acl- 
minisl rater,  m?r.tion>' d  in  the  bill  in  ch;  ncery,  upon  which  the  decree 
was  rendered,  and  offered  to  rend  in  evidence  the  special  writ  of  execu- 
tion with  the  return  thereon;  which  leturn  stated  that  said  premises 
were  sold  to  the  defendant,  and  also  the  sheriff's  certificate  of  the  sale 
of  said  premisf  s,  and  his  deed  to  the  defendant,  under  an  execution  in 
favor  of  one  Wesley  Williams,  which  were  excluded  from  the  jury;  and 
the  plaintiff  then  offered  to  prove  that  Claytor  had  redeemed  said  prem- 
ises from  said  sheriff's  sale,  which  was  not  allowed,  and  the  Court  ex- 
cluded said  decree  from  the  jury.  The  defendant  then  offered  in  evi- 
den*e  the  bill,  process,  etc.,  in  the  chancery  suit  in  which  the  decree  was 
rendered  in  favor  of  Archibald  Williams,  administrator,  etc.,  which  were 
rejected  by  the  Court,  to  all  of  which  decisions  against  him,  the  defendant 
excepted:  Held  that  the  decree  was  properly  excluded  from  the  jury,  in- 
asmuch as  the  defendant  had  failed  to  produce  a  deed  from  the  sheriff 
under  the  special  writ  of  execution.  Held,  also,  that  the  bill  was  prop- 
erly excluded.  Held,  also,  that  the  deed  from  the  sheriff  was  not  ad- 
missible in  evidence,  as  it  recited  an  entirely  different  writ  of  execution 
from  that  described  in  the  decree.  Held,  also,  that  there  was  no  error 
in  the  proceedings.  Williams  v.  CJaytor  et  al.,  502 

7.  The  practice  of  excluding  evidence,  after  it  has  been  received,  where  some 

one  important  link  in  the  chain,  necessary  to  establish  the  right  claimed, 
is  wanting,  seems  to  have  been  adopted  in  many  of  the  courts  of  the 
Western  States,  as  an  equivalent  for  instructing  the  jury  that  for  want 
of  such  proof  the  party  has  not  made  out  the  point  sought  to  be  estab- 
lished. Ibid.,  502 

8.  Semblc,  That  fraud  can  not  be  given  in  evidence  to  impeach  a  deed,  in  an 

action  of  ejectment.     Ibid.,  502 

9.  SemVe,  That  where,  in  an  action  of  ejectment,  the  verdict  of  the  jury  was 

rendered  in  favor  of  the  lessors  of  the  plaintiff,  no  objection  can  be 
raised  on  that  account,  in  the  Supreme  Court.  Ibidt,  502 

See  EVIDENCE,  10,  11,  12;  PUBLIC  LANDS. 

ELECTION. 

1.  The  Proclamation  of  the  Governor  declaring  who  is  elected  to  Congress, 
is  prima  facie  evidence  of  the  facts  therein  stated.  Lurton  v.  Gillifnn 
et  aL,  577 

66. 


INDEX.  625 

ENCLOSURES. 
See  FENCES. 

EQUITY. 
See  CHANCERY. 

ERROR  AND  WRIT  OF  ERROR. 

1.  A  writ  of  error  is  a  writ  of  right,  andean  not  be  denied,  except  in  capital 

cases.     Bowers  v.  Green,  42 

2.  A  writ  of  error  lies  from  a  Circuit  Court  to  the  Supreme  Court,  although 

the  judgment  complained  of  be  less  than  twenty  dollars.    Ibid.,          42 

3.  It  would  be  clearly  unjust  to  permit  a  partv  to  assign  his  own  mistakes  as 

error.     Clemson  et  al.  v.  State  Bank  of  Illinois,  45 

4.  It  is  not  error  for  the  Court  to  give  final  judgment  againt  the  defendant, 

upon  sustaining  the  plaintiffs' demurrer  to'a  bad  plea.     Ibid.,  45 

5.  A  party  can  not  assign  for  error  that  which  makes  in  his  own  favor,  ex- 

cept under  peculiar  circumstances.     Bailey  v.  Campbell,  47 

6.  An  application  to  set  aside  a  judgment  by  default,  or  to  grant  a  new  trial, 

is  an  application  directed  to  the  discretion  of  the  Court,  and  the  decis- 
ion of  the  Court  upon  such  application  can  not  be  assigned  for  error. 
Harmison  v.  Clarke  et  al.,  1'dl 

7.  A  party  can  not  assign  that  for  error  which  was  for  his  own  benefit. 

Ibid.,  131 

8.  An  application  to.set  aside  a  default  is  addressed  to  the  sound  discretion 

of  the  Court,  ana  no  writ  of  error  will  lie  to  correct  its  exercise.  It  is 
too  late  to  make  an  application  to  set  aside  a  default  after  one  term  of  the 
Court  has  intervened  between  the  term  at  which  the  default  was  taken, 
and  that  at  which  the  motion  was  made.  Garner  et  al.  v.  Crenshaw, 

143 

9.  The  refusal  of  the  Circuit  Court  to  instruct  the  jury  that  there  was  no  evi- 

dence of  a  fact  which  the  testimony  tended  to  prove,  can  not  be  as- 
signed for  error.  Morton  v.  Gafely,  211 

10.  The  objection  that  a  judgment  was  given  without  a  rule  to  plead,  can 
not  be  assigned  for  error.     Marshall  v.  Maury,  231 

11.  Where,  after  pleading,  a  defendant  stipulated  that  judgment  might  go 
as  by  default,  on  his  failure  to  file  a  paper  on  a  given  day  ;  and  on  such 
failure,  judgment  by  default  was  entered  notwithstanding  the  plea  : 
Held  that  there  was  no  error.     Foster  v.  Filley,  256 

12.  A  writ  of  error  does  not  lie  in  behalf  of  the  people,  to  reverse  the  de- 
cision of  a  Circuit  Court  in  a  criminal  case.     The  People  v.  Dill,     257 

13.  Unless  a  party  excepts  to  instructions  in  the  Court  below,  he  can  not  as- 
sign them  for  error  in  the  Supreme  Court.     Peck  v.  Bnapetts,  281 

14.  Upon  the  overruling  of  a  demurrer  to  a  plea,  if  the  plaintiff  reply,  he 
thereby  waives  the  demurrer,  and  can  not  afterward  assign  for  error 
that  it  was  overruled.    Ibid.,  281 

15.  A  writ  of  error  will  not  lie  to  the  final  judgment  of  the  Circuit  Court  in 
a  case  tried  by  the  Court  without  the  intervention  of  a  jury.     Stringer 
v.  Smith  etaL,  295 

16.  A  party  can  not  p.ssign  for  error  an  erroneous  instruction  favorable  to 
him.     Kitchell  v.  Braffon,  300 

17.  Where  an  erroneous  instruction  is  given  to  the  jury,  but  the  bill  of  ex- 
ceptions does  not  enable  the  Court  to  see  what  effect  it  probably  had 
vion  their  verdict,  the  judgment  of  the  Court  below  will  be  reversed. 
The  bill  of  exceptions  should  have  stated  the  proof  upon  the  point. 
lb,d.t  300 

18.  Thi>  granting  and  refusing  of  contimiances  is  a  matter  of  sound  legal 
discretion,  resting  entirely  with  the  Circuit  Court;  and  that  Court  is  to 
judge  whether  the  party  applying1  for  a  continuance  has  complied  with 
rhe  requisitions  of  the  statute;   and  the  decision  of  the  Court  in  such 
cases  can  not  be  assigned  for  error.     Vickers  v.  Hilletal.,  307 

CC5 


626  INDEX. 

19.  If  an  exception  exist  to  this  general  rule,  that  exception  is  to  be  confined 
to  the  simple  point  of  the  material;  y  of  the  facts  resting  within  the 
knowledge  of  the  witness,  and  thu^    tendency  to  prove  the  point  rli- 
rectly  in  issue.    Ibid.,  o07 

20.  The  rule  is  well  settled,  that  error  can  not  be  assigned  for  the  refusal  *>f 
a  Court  to  grant  a  motion  addressed  to  its  discretion.     Grain  v.  Hail  en 
et  al.,  321 

21.  Where  the  record  of  the  Circuit  Court  does  not  show  for  what  cause  an 
appeal  was  dismissed,  and  a  judgment  for  costs  is  rendered  against  the 
appellant,  the  judgment  will  be  reversed.    Kinman  v.  Bennett,       3-!t5 

22.  In  a  cause  tried  by  the  Court  without  the  intervention  of  a  jury,  a  bi  I 
of  exceptions  can  not  be  taken  to  the  final  judgment  of  a  Circuit  Court 
nonsuiting  the  plaintiff,  even  where  it  is  agreed  by  the  parties  tlut 
either  party  shall  have  the  same  right  to  except  as  if  the  cause  were  tr:o  1 
by  a  jury.     Ballingall  v.  Spragglns,  &>0 

23.  Where  the  Court  below  hear  the  testimony  on  bftth  sides,  a  bill  of  excep- 
tions will  not  lie  to  the  judgment  of  the  Court,  though  the  parties  ag  -ee 
that  there  shall  be  "the  same  right  to  except  to  any  opinion  of.  the 
Court  during  the  progress  of  the  trial   and  upon  final  judgment  as 
though  the  cause  were  tried  before  a  jury,  and  such  exception  shall  be 
considered  in  the  Supreme  Court,  as  though  the  cause  were  tried  by  a 
jury."     Arenz  v.  Reihle  et  al.,  340 

24.  A  party  can  not  assign  for  error  an  erroneous  decision  which  does  not 
prejudice  his  rights.    Ibid.,  340 

25.  Where  a  writ  is  tested  in  the  name  of  a  person  who  was  not,  at  the 
date  of  the  test,  judge  of  the  Court,  the  objection  can  be  taken  advan- 
tage of  only  by  motion  in  the  Court  from  which  the  process  issued.    The 
mistake  can  not  be  assigned  for  error  in  this  Court.    Beaubienv.  Bar- 
bour,  .    •  386 

26.  In  an  action  of  assumpsit,  it  is  erroneous  to  enter  up  a  judgment  for 
debt  and  damages.    Lyon  v.  Barney,  387 

27.  It  is  erroneous  to  take  judgment  by  default  where  a  plea  of  non-assump- 
sit  is  interposed.   Ibid.;  Covell  et  al.  v.  Marks,  391 

28.  Where  a  summons  is  issued  not  under  the  seal    of  the  Court,  the  Court 
should,  on  motion,  quash  it.     It  is  error  to  refuse  such  a  motion.    An- 
glin  y.  Nott,  395 

29.  A  writ  of  error  will  lie  to  the  decision  of  a  Circuit  Court  upon  a  motion 
to  set  aside  a  judgment,  and  quash  an  execution  issued  thereon.  Sloo  v. 
State  Bank  of  Illinois,  428 

30.  Semble,  That  the  defendants  in  error,  by  joining  in  error,  waive  all  ob- 
jection to  the  assignment  of  errors,  if  the  rigid  rules  of  pleading  be  ad- 
hered to;  the  joinder  being  only  considered  as  a  demurrer  to  the  assign- 
ment of  errors,  in  cases  where  the  errors  are  not  well  assigned,  and  con- 
tradict the  record.     Ibid.,  428 

31.  Whenever  a  decision  takes  place  in  any  of  the  Circuit  or  inferior  courts 
of  record  in  this  State,  which  is  final,  and  of  which  a  record  can  be 
made,  and  which  decides  the  right  of  property,  or  personal  liberty,  com- 
plete jurisdiction  is  conferred  on  the  Supreme  Court  to  hear  and  deter- 
mine the  same.    Ibid.,  428 

82.  It  is  not  error  to  render  final  judgment  upon  demurrer.    If  a  party  wish 
to  answer  over,  he  should  withdraw  his  demurrer.      Godfrey  et  al.  v. 
Buckmaster,  447 

83.  Where  there  is  a  judgment  on  a  demurrer  against  the  party  demurring, 
if  he  wishes  to  avail  himself  in  the  Supreme  Court  of  the  grounds  raised 
by  the  demurrer,  he  must  stand  by  his  demurrer  in  the  Court  below; 
otherwise  he  will  be  precluded  from  assigning  for  error  the  judgment 
of  the  Circuit  Court.    Gilbert  et  al.  v.  Maggord,  471 

34.  By  a  rule  of  the  Supreme  Court,  no  errors  will  be  inquired  into,  but  su^h 
as  are  assigned.    Ibid.,  471 

35.  Where  the  precept  for  summoning  the  jury  at  a  special  term  of  a  Circuit 
Court  called  for  the  trial  of  a  prisoner  charged  with  a  capital  cr  1110,  had 
been  lost  by  the  sheriff,  arid  the  Court  directed  a  new  one  to  be  iiled 


INDEX.  627 

nunc  pro  tune:  Held  that  there  was  no  error.  Guykowski  v.  The 
People,  476 

36.  Where  a  demurrer  was  interposed  to  the  replication  of  the  plaintiff  to 
one  of  the  defendant's  pleas,  issue  to  the  country  having  been  taken  on 
the  other  pleas,  and  the  parties  agreed  that  both  matters  of  law  and  fact. 
arising  in  the  cause,  might  be  tried  by  the  Court,  and  after  hearing  the 
evidence  the  Court  gave  judgment  for  the  plaintiff  for  damages,  with- 
out expressly  overruling  the  demurrer:  Held  that  as  the  replication  wns 
sufficient,  there  was  no  error  in  the  proceedings.  Phillips  v.  Dana,  498 

37.  Applications  to  amend  the  pleadings  in  a  cause  are  addressed  to  the 
sound  discretion  of  the  Court,  and  the  allowance  of  such  applications 
can  not  be  assigned  for  error.    Ibid.,  498 

38.  An  application  to  set  aside  a  default  is  addressed  to  the  sound  discretion 
of  the  Court,  and  the  manner  of  the  exercise  of  that  discretion  can  not 
be  assigned  for  error.     Wallace  v.  Jerome,  524 

39.  It  is  a  well  settled  rule  of  law,  that  in  trials  by  jury  the  weight  of  tes- 
timony is  a  question  to  be  decided  by  the  jury  exclusively.    The  decis- 
ion, consequently,  can  not  be  assigned  for  error.    Johnson  v.  Mou'lton, 

5-,  ij 

40.  It  is  error  to  take  judgment  by  default,  where  a  demurrer  is  filed  to  the 
declaration  or  petition.    McKinney  v.  May,  524 

41.  Where  B.  instituted  a  suit  against  I.  by  capias,  and  held  the  defendant 
to  bail,  and  the  Court,  on   motion,  discharged  the  bail,  but  rendered 
judgment  for  the  plaintiff  for  the  amount  of  his  demand:    Held  that 
the  plaintiff  could  not  bring  a  writ  of  error  to  reverse  the  decision  of 
the  Court  discharging  the  bail.     Held,  also,  that  the  defendant  in  error 
should  have  demurred  to  the  assignment  of  error;  yet,  that  notwith- 
standing he  had  joined  in  error,  the  Court  would  not,  by  affirming  the 
judgment,  subject  the  defendant  to  the  costs  of  the  Supreme  Court;  but 
would  dismiss  the  writ  of  error.     Brunei-  v.  Ingraham,  556 

42.  A  motion  to  discharge  bail  is  addressed  to  the  sound  discretion  of  the 
Court;  and  its  decision  upon  such  a  motion  can  not  be  assigned  for 
error.    Ibid.,  556 

43.  The  State  can  not  prosecute  a  writ  of  error  in  a  criminal  case.     The 
People  v.  Royal,  557 

44.  A  joinder  in  error  will  not  give  the  Supreme  Court  jurisdiction  in  a  cape 
where  the  constitution  has  not  conferred  it.     Ibid.,  557 

45.  The  provision  in  Article  8,  §11,  of  the  Constitution  of  the  State  of  Illi- 
nois, "That  no  person  shall  for  the  same  offense  be  twice  put  in  jeop- 
ardy of  his  life  or  limb,"  prohibits  the  State  from  bringing  a  writ  of 
error  where  a  person  accused  of  a  crime  is  acquitted  in  the  Court  below. 
Ibid.,  557 

See  ALIMONY;  APPEAL;  CHANCERY;   INSTRUCTIONS;  PRACTICE;  RETURN 
^HOCESS;  RECOGNIZANCE;  SHERIFF. 

ESCAPE". 

See  CONSTABLE,  1,  2. 

ESTATES. 

1.  Where  A.  devised  land  to  C..  to  take  effect  on  the  death  of  the  wife  of 

A.,  on  condition  that  C.  would  become  bound  to  and  live  with  A.'s 
wife  until  C.  should  be  married,  evidence  of  the  declarations  of  the 
wife  of  A.  that  she  did  not  desire  C.  to  be  bound  to  her,  is  relevant 
and  proper.  If  A.'s  wife  voluntarily  dispense  with  the  performance 
of  the  condition,  the  estate  will  take  effect.  Jones  et  al.  v.  Bramlht 
etal.,  276 

2.  The  performance  of  a  condition,  where  it  has  been  voluntarily  dispensed 

with,  is  not  essential  or  necessary  to  the  perfection  of  an  estate.    Ibid., 

276 

3.  If  there  exist  any  obscurity  in  the  language  of  a  will,  owing  to  its 

C67 


628  INDEX. 

peculiar  phraseology,  and  the  seeming  incongruities  of  its  several  parts, 
and  the  Court  can  ascertain  the  real  intention  fi  the  testator  ancf  give 
effect  to  the  several  parts  of  the  will  without  rendering  any  component 
part  inoperative,  it  is  bound  so  to  do.  Ibid.,  276 

4.  If  there  be  two  devises  in  a  will  of  the  same  property  to  two  different 

persons,  and  the  first  create  an  estate  of  inheritance,  the  second  devise, 
without  words  of  perpetuity,  will  not  destroy  the  first,  and  will  create 
a  life  estate  only,  with  reversion  in  the  heirs  of  the  first  devisee.  Ibid., 

276 

5.  If  a  testator  annex  a  condition  to  the  creation  of  an  estate,  the  perform- 

ance of  which  afterward  becomes  impossible,  the  devisee  will  take  the 
estate  discharged  of  the  condition.  Ibid.,  276 

6.  Words  of  inheritance  or  perpetuity  are  essential  to  create  a  fee.      A 

devise  without  words  of  perpetuity  or  inheritance,  creates  a  life  estate 
only.  Ibid.,  276 

See  DOWER. 

ESTOPPEL. 
See  EVIDENCE,  9,  10. 

EVIDENCE. 

1.  After  issue  taken  on  the  facts  contained  in  the  declaration,  it  is  sufficient 

for  the  plaintiff,  by  proof,  to  sustain  the  material  averments  contained 
therein.  Humphrey sv.  Collier  et  al.,  47 

2.  Under  the  general  issue,  in  an  action  by  an  administrator,  proof  that  the 

plaintiff  had  received  letters  of  administration  upon  the  estate  of  his 
intestate  is  unnecessary.  The  fact  whether  he  was  or  was  not  an 
administrator,  is  not  put  in  issue.  McKinly  v.  Braden,  64 

8.  Statutes  defining  the  boundaries  of  counties  are  public  acts,  and  courts 
are  bound  judicially  to  take  notice  of  them.  In  an  action  of  trespass 
quare  clausiim  fregit,  proof  that  the  trespass  was  committed  upon  the 
premises  described  in  the  declaration,  by  the  number  of  the  section, 
township  and  range  (the  said  premises  being  in  the  proper  county),  is 
sufficient  without  evidence  that  the  premises  are  situated  in  the  county 
where  the  action  is  brought.  Boss  et  al.  v.  Reddick,  13 

4.  The  official  certificate  of  the  Register  of  a  Land  Office  to  any  fact  on 

record  in  his  office,  is  competent  evidence  of  such  fact.    Ibid. .  73 

5.  Where  the  County  Commissioners  of  V.  county  contracted  with  K.,  a 

physician,  to  render  medical  services  to  a  pauper,  but  neglected  to  have 
a  record  made  of  sudi  contract:  Held  that  the  contract  might  be  proved 
by  parol  evidence.  Vermilion  County  v.  Knight.  97 

6.  It  is  not  necessary  for  a  party  who  has  rendered  aid  to  a  person  acknowl- 

edged as  a  pauper  by  the  County  Commissioners,  and  at  their  request, 
to  prove  that  such  person  was  actually  entitled  to  aid  under  the  laws . 
providing  for  the  support  of  the  poor.  Ibid.,  97 

7.  The  fact  that  the  names  of  two  petit  jurors  are  the  same  as  those  of  two 

grand  jurors,  does  not  show  that  they  are  the  same  persons.  Wicker- 
sham  v.  The  People,  128 

8.  In  a  suit  by  a  sheriff  upon  a  forthcoming  bond  taken  by  him  for  property 

levied  on  by  an  attachment,  it  is  unnecessary  for  the  plaintiff  to  show 
that  the  attachment  was  actually  levied  upon  the  property;  the  judg- 
ment of  the  Court  directing  the  property  attached  to  be  sold  is  conclu- 
sive as  to  that  point.  Crisman  et  al^v.  Matthews,  148 

9.  A  defendant  in  a  forthcoming  bond  is  estopped  from  denying  that  an 

attachment  had  issued,  and  that  the  property  had  been  seized  and  taken 
by  the  sheriff;  the  recitals  in  the  condition  of  the  bond  admit  these 
facts.  Ibid.,  148 

10.  Where  two  patents  have  issued  for  the  same  lands  to  different  persons, 
at  different  times,  the  elder  patent  is  the  highest  evidence  of  title,  and 

668 


INDEX.  629 

so  long  as  it  remains  in  force,  is  conclusive  against  a  junior  patent. 
Brunerv.  Manlove  et  al.,  156 

11.  A  patent  can  not  be  impeached  by  parol,  in  an  action  of  ejectment. 
Ibid.,  156 

12.  The  certificate  of  the  Register  of  a  Land  Office,  of  the  purchase  of  a  por- 
tion of  the  public  lands  of  the  U.  S.,  is,  under  the  statute  of  this 
State,  of  as  high  a  character  in  point  of  evidence  as  a  patent,  in  an  action 
of  ejectment,  and  is  to  be  governed  by  the  same  rules  of  interpretation. 
The  elder  certificate  is  conclusive  against  a  subsequent  one.    Ibid.,  156 

13.  Parol  proof  can  not  be  received  to  show  when  process  was  served,  where 
the  officer  who  made  the  service  is  dead.     Wilson  v.  Greathouse,     174 

14.  The  certificate  of  a  land  officer,  is  evidence.     Turney  v.  Goodman,  184 

15.  The  parol  testimony  of  a  county  surveyor,  in  relation  to  the  location  of 
a  tract  of  land,  is  good  evidence.     Ibid.,  184 

16.  In  an  action  for  slander,  it  is  sufficient  to  prove  the  substance  of  the 
words  charged.     But  proof  of  equivalent  words  is  not  sufficient.     Slo- 
•cumb  v.  Kuykendall,  187 

17.  It  is  a  well  settled  rule  of  law,  that  where  one  party  relies  on  the  admis- 
sion of  the  other  party,  the  whole  of  the  admission  must  be  taken 
together.     Arnold  v.  Johnson,  196 

18.  In  an  action  against  a  constable  for  an  escape  upon  a  ca.  sa.  or  for 
neglecting  to  execute  a  en.  sa.,  proof  on  the  part  of  the  defendant  that 
the  ca.  sa.  was  issued  upon  the  oath  of  an  agent  of  the  plaintiff  is  not 
admissible.     Brother  et  al.  v.  Cannon,  200 

19.  A  declaration  in  detinue  for  "a  red  cow  with  a  white  face,"  is  not  sup- 
ported by  proof  that  "  the  cow  was  a  yellow  or  sorrel  cow."    Felt  v. 
Williams,  206 

20.  In  an  action  by  C.  against  L.,  for  erecting  a  dam  across  a  navigable 
•    stream,  which  obstructed  its  navigation,  and  by  means  of  which  C.'s 

boat  and  boat  load  of  corn  were  lost,  the  defendant  asked  a  witness 
"whether  there  was  not  another  mill-dam  across  said  river  below  the 
defendant's  mill-dam,  erected  in  violation  of  law,  which  was  higher 
than  the  defendant's  mill-dam;  and  whether  said  lower  dam  would  not 
have  prevented  plaintiff  from  proceeding  to  the  lower  markets  of 
Natchez  or  New  Orleans,  as  it  was  late  in  the  season,  and  no  other  tido 
might  take  place  in  the  river  during  that  season,  even  if  the  plaintiff 
could  have  gone  over  the  defendant's  mill-dam."  Held  that  tae  ques- 
tion was  illegal  and  improper:  Clark  v.  Lake,  229 

21 .  The  true  rule  relative  to  receiving  or  rejecting  testimony,  is :  Does  the 
proposed  testimony  tend  to  prove  the  issue  joined  between  the  parties? 
If  the  testiinony  offered  does  not  tend  to  prove  the  issue,  or  is  calculated 
to  lead  the  jury  astray,  it  ought  to  be  rejected.    Ibid.,  229 

22.  Where  W.  held  a  note  dated  Oct.  21,  1823,  for  $200,  made  by  M.  and 
payable  to  W.  thirty  days  after  date;  and  another  note  for  $453.10, 
dated  Aug.  9,  1815,  signified  also  by  M.,  and  M.  died  March  9,  1831; 
and  after  M.'s  death  a  receipt  was  found  among  his  papers,  given  by 
W.  to  M.  in  full  of  all  demands,  dated  Feb.  3,  1831,  and  another  re- 
ceipt in  which  W.  promised  to  collect  a  note  for  $50,  and  to  pay  over 
the  proceeds  to  the  intestate,  after  deducting  25  per  cent,   for  collect- 
ing, dated  December  25,  1830:  Held,  that  the  receipts  were  prima  facie 
evidence  of  the  payment  of  the  notes.     Marston  y.  Wilcox,  270 

23.  A  receipt  in  full  of  all  demands  is  prima  facie  evidence  of  the  payment 
of  all  notes  and  claims  existing  at  the  time  the  receipt  is  given.     Ibid.. 

270 

24.  In  an  action  for  malicious  prosecution,  the  defendant  may  give  in  evi- 
dence any  facts  which  show  that  he  had  probable  cause  for  prosecuting, 
and  that  he  acted  in  good  faith  on  the  ground  of  suspicion.      Leidlg  v. 
Ratcson,  272 

25.  In  an  action  for  the  malicious  prosecution  of  the  plaintiff  on  a  charge  of 
perjury  in  making  a  complaint  before  a  justice  of  the  peace,  that  the 
defendant  had  committed  a  larceny,  the  defendant  asked  the  following 
question  of  a  witness,  who  was  his  counsel  before  the  justice:  "  Did  the 

ecu 


630  INDEX. 

defendant  understand,  on  the  trial  before  the  justice,  that  he  was  an- 
swering1 to  a  prosecution  for  stealing?"  Held  that  the  question  was  im- 
proper. Ibid.,  272 

26.  The  declarations  and  acts  of  a  third  person  are  not  legal  evidence. 
Jones  et  al.  v.  Bramblet  et  aL,  276 

27.  Where  A.  devised  land  to  C.,  to  take  effect  on  the  death  of  the  wife  of 
A.,  on  condition  that  C.  would  become  bound  to  and  live  with  A.'s 
wife  until  C.  should  be  married,  evidence  of  the  declarations  of  the  wife 
of  A. ,  that  she  did  not  desire  C.  to  be  bound    to  her,  is  relevant  and 
proper.     If  A.'s  wife  voluntarily  dispense  with  the  performance  of  the 
condition,  the  estate  will  take  effect.    Ibid.,  276 

28.  The  possession   of  a  note  or  bond,  is  prim  a  facie  evidence  of  the  legal 
title  to  the  instrument,  and  of  a  right  to  use  the  name  of  the  person  to 
whom  it  was  payable.     Ransom  v.  Jones,  291 

29.  Proof  that  defendant  stole  a  mare  or  a  gelding,  will  sustain  an  indict* 
ment  for  stealing  a  horse.     Baldwin  \.  The  People,  304 

30.  An  indictment  alleging  that  the  animal   was  stolen  and  carried  away, 
will  be  sustained  by  proof  that  it  was  ridden,  driven,  or  led  away 
Ibid.,  304 

31.  A  lease  can  not  be  read  in  evidence/  except  between  the  parties  to  the 
same,  without  proof  of  its  execution.     Grimsley  et  al.  v.  Klein,      343 

32.  The  Circuit  Court  has  no  power  to  direct  a  sale  of  real  estate  by  an  ad- 
ministrator, to  be  made  for  any  other  funds  than  the  legal  currency  of 
the  State.     The  direction  to  take  payment  in  notes  of  the  State  Bank  of 
Illinois  was  not  warranted  by  law.     But  such  direction  did  not  render 
the  proceedings  void,  but  voidable  only.     Such  a  direction  does  not 
render  a  record  of  an  order  of  sale  inadmissible  as  evidence.     Smith  et 
al.  v.  Hileman,  323 

33.  Where  a  declaration  stated  that  the  assault  and  battery  were  committed 
"  at  Montebello,  in  the  county  of  Hancock,  and  within  the  jurisdiction 
of  th»s  Court:"     Held,  that  it  was  unnecessary  to  prove  that  the  assault 
and  battery  were  committed  within  the  town  of  Montebello.    Hurley 
v.  Marsh  etnl.,  329 

34.  Where  an  attachment  was  levied  on  goods  in  the  possession  of  S.,  and 
upon  a  trial  of  the  right  of  property  between  S.  and  the  attaching 
creditors,  the  property  was  found  to  be  subject  to  the  attachment,  and 
S.  gave. security  to  the  sheriff  who  attached  them,  for  their  return,  but 
subsequently  put  them  into  the  possession  of  A.,  who  sold  them,  and 
who  was  thereupon  summoned  as  garnishee  in  the  attachment  suit: 
Held,  that  in  determining  whether  A.  was  liable  as  garnishee,  the  rec- 
ord of  the  trial  of  the  right  of  property  between  the  creditors  in  the 
attachment  and  S.,  was  properly  admitted,  and  that  it  was  conclusive  as 
to  the  ownership  of  the  property.    Arenz  v.  Reihle  et  al.,  340 

35.  Semble,  That  a  trial  of  the  right  of  property,  under  the  statute,  is  con- 
clusive between  the  parties  and  privies.    Ibid.,  340 

36.  The  decision  of  the  Register  and  Receiver  of  a  Land  Office,  like  that  of  all 
other  tribunals  where  no  appeal  is  allowed,  is  final  and  conclusive,  upon 
all  the  facts  submitted  by  law,  to  their  examination  and    decision. 
Their  determination  in  relation  to  the  right  of  pre-emption  to  a  tract  of 
land  within  their  jurisdiction,  is  conclusive.     McConnellv.Wilcox,  344 

37.  The  character  of  a  general  law,  and  the  force,  effect,  and  application 
thereof,  are -not  to  be  determined  by  the  character  of  the  parties  to  the 
action.     If  the  act  of  the  legislature  making  a  register's  certificate  of 
the  purchase  of  a  tract  of  land  of  the  United  States,  evidence  of  title  is 
valid  as  a  rule  of  decision  between  citizens  of  the   State  of  Illinois,  it 
is  also  valid  between  a  citizen  and  the  United  States.    Ibid.,  344 

38.  The  act  of  the  legislature  of  the  State  of  Illinois,  making  the  register's 
certificate  of  the  purchase  of  land  at  the  United  States  Land  Offices,  evi- 
dence of  title,  does  not  conflict  with  the  Ordinance  of  1787.     Ibid.,   344 

39.  A  patent  is  not  the  title  itself,  but  the  evidence  thereof.     Ibid.,         344 

40.  The  certificate  of  a  Register  of  a  Land  Office,  of  the  purchase  of  a  tract  of 

670 


INDEX  631 

land  from  the  United  States,  is  of  as  high  authority  as  a  patent. 
Ibid.,  344 

41.  The  words  "  better,  legal,  paramount  title,"  used  in  the  act  of  the  leg- 
islature, making  the  certificates  of  the  land  officers  evidence,  do  not 
moan  the  title  of  the  United  States;  but  they  refer  to  cases  where  the 
United  States  had  not  the  title  at  the  time  of  the  sale  and  issuing  of 
the  certificate.    Ibid.,  °344 

42.  An  averment  in  a  bill  in  chancery,  that  the  payment  of  a  note  was  made 
on  the  day  the  same  became  due,  is  not  sustained  by  proving  that  the 
money  was  paid  or  tendered,  at  a  subsequent  and  remote  day.    Moffett 
v.  Clements,  334 

43.  Where  the  declaration  averred  that  the  defendants  made  their  promis- 
sory note  to  the  plaintiff,  Alexander  Tappan,  and  the  note  produced  in 
evidence  was  made  payable  to  A.  H.  Tappan,  and  the  plaintiff  proved 
by  parol,  that  Alexander  and  A.  H.  was  one  and  the  same  person,  and 
the  holder  of  the  note  :    Held,  that  the  proof  sustained  the  declaration. 
Peyton  et  al.  v.  Tappan,  388 

44.  In  an  action  to  recover  upon  a  promise  to  pay  for  improvements  made 
upon  the  public  lands  of  the  United  States,  it  is  incumbent  upon  the 
plaintiff  to  prove  not  only  the  promise  of  the  defendant,  but  that  the 
improvements  which  are  the  consideration  of  the  promise,  were  at  the 
time  the  contract  was  entered  into  upon  the  lands  of  the  government. 
Roberts  v.  Garen,  396 

45.  The  admission  of  an  affidavit  for  a  continuance,  on  the  ground  of  the 
absence  of  a  material  witness,  in  evidence,  is  an  admission  of  the  truth 
of  the  facts  which  the  affidavit  states  can  be  proved  by  such  witness, 
and  they  can  not  be  contradicted.     Willis  v.  The  People,  399 

46.  Where  the  evidence  tends  to  prove  the  issue,  the  jury  should  be  left  to 
determine  the  cause  under  the  evidence  offered.     In  such  a  case  the 
Court  has  no  power  to  take  the  cause  from  them,  nor  to  advise  them 
that  the  defendant  is  entitled  to  their  verdict.     Davis  v.  Hoxey,      406 

47.  The  admission  of  an  assignor  of  a  promissory  note,   as  a  witness,  to 
prove  the  time  of  assignment,   is  contrary  to  the  rules  of  evidence. 
Stacy  v.  Baiter,  417 

48.  The  issuing  of  a  summons  and  supersedeas,  on  appeal  from  a  judgment 
of  a  justice  of  the  peace,  is  evidence  that  the  appeal  bond  is  approved 
by  the  clerk.     Waldo  et  al.  v.  Averett,  487 

49.  The  act  of  Congress  prescribing  the  mode  of  authenticating  the  acts  of 
the  several  legislatures,  declares  that  such  acts  shall  be  authenticated  by 
having  the  seal  of  their  respective  States  affixed  thereto.     An  act  certi- 
fied by  the  Secretary  of  State,  to  which  is  appended  a  certificate  of  the 
Governor,  with  the  seal  of  State  affixed,  certifying  to  the  official  character 
of  the  person  signing  himself  as  Secretary,  and  that  full  faith  and  credit 
are  to  be  given  to  his  official  acts,  is  not  a  compliance  with  the  act  of 
Congress.     La  Fayette  Bank  of  Cincinnati  v.  Stone,  424 

50.  Where  the  plaintiff  brought  an  action  before  a  justice  of  the  peace,  up- 
on a  bond  made  by  the  defendant  while  an  infant  and  upon  the  trial 
the  defendant  pleaded  and  proved  his  infancy  in  bar;  and  thereupon 
the  plaintiff  made  oath  that  he  knew  of  no  witness  by  whom  he  could 
prove  the  defendant's  agreement  since  he  became  of  age,  to  pay  him  818 
in  full  of  the  bond,  except  by  his  own  oath,  or  that  of  the  defendant,  and 
prayed  that  the  defendant  might  be  sworn,  which  the  court  refused  to 
allow:  Held,  that  the  court  -decided  correctly,  because  the  proof,  if  ad- 
mitted, would  have  proved  a  different  cause  of  action  from  that  upon 
which  the  suit  was  brought.     Bliss  et  al.  v.  Perryntan,  484 

51.  Semble,  That  an  infant  can  not  bind  himself  by  bond.     Ibid.,        484 

52.  In  an  action  of  ejectment,  the  plaintiff,  to  support  his  title,  read  in 
evidence  a  deed  from  one  Wheelock  and  wife,  to  one  Claytor,  from 
whom  the  lessors  of  the  plaintiff  derived  title  to  the  premises  described 
in  his  declaration,  aiid  tho  defendant  read   in  evidence  a  decree  of  the 
Adams  Circuit  Court  sitting  as  a  court  of  chancery,  made,  in  a  case  where- 
in Archibald  Williams,  administrator,  etc.,  was  complainant,  which  re. 

671 


632  INDEX. 

scinded  and  set  aside  the  deed  to  said  Claytor,  and  the  deed  to  the  les' 
sors  of  the  plaintiff,  and  directed  that  a  special  execution  issue  to  the 
sheriff  of  Adams  countv,  against  said  Wheelock,  as  the  trustee  of  one 
Hynes,  to  sell  thi  pn  misos  described  in  the  plaintiff's  declaration,  for 
the  satisfaction  of  the  judgment  and  costs  in  favor  of  said  Williams, 
administrator,  mentioned  in  the  bill  in  chancery,  upon  which  the  decree 
was  rendered,  and  offered  to  read  in  evidence  the  special  writ  of  execu- 
tion with  the  return  thereon,  which  return  stated  that  said  premises 
were  sold  to  the  defendant,  and  also  the  sheriff's  certificate  of  the  sale 
of  said  premises,  and  his  deed  to  the  defendant,  under  an  execution  in 
favor  or  one  Wesley  Williams,  which  were  excluded  from  the  jury;  and 
the  plaintiff  then  offered  to  prove  that  Claytor  had  redeemed  said  prem- 
ises from  .^aid  sheriff's  sale,  which  was  not  allowed,  and  the  Court  ex- 
cluded said  decree  from  the  jury.  The  defendant  then  offered  in  evi- 
dence the  bill,  process,  etc.,  in  the  chancery  suit  in  which  the  decree 
was  rendered  in  favor  of  Archibald  Williams,  administrator,  etc.,  which 
were  rejected  by  the  Court,  to  all  of  which  decisions  against  him,  the 
defendant  excepted:  Held,  that  the  decree  was  properly  excluded  from 
the  jury,  inasmuch  as  the  defendant  had  failed  to  produce  a  deed  from 
the  sheriff  under  the  special  writ  of  execution.  Held,  also,  that  the  bill 
was  properly  excluded.  Held,  also,  that  the  deed  from  the  sheriff  was 
not  admissible  in  evidence,  as  it  recited  an  entirely  different  writ  of 
execution  from  that  described  in  the  decree.  Held,  also,  that  there 
was  no  error  in  the  proceedings.  Willinms  v.  Claytor  et  al.,  502 

53.  The  practice  of  excluding  evidence,  after  it  has  been  received,  where 
some  one  important  link  in  the  chain,  necessary  to  establish  the  right 
claimed,  is  wanting,  seems  to  have  been  adopted  in  many  of  the  courts 
of  the  Western  States,  as  an  equivalent  for  instructing  the  jury  that  for 
want  of  such  proof,  the  party  has  not  made  out  the  point  sought  to  be 
established.    Ibid.,  502 

54.  Semble,  That  fraud  can  not  be  given  in  evidence  to  impeach  a  deed,  in 
an  action  of  ejectment.    Ibid.,  502 

55.  In  a  suit  for  a  crim.  con.,  a  marriage  license  issued  in  the  State  of  Ten- 
nessee, with  a  certificate  indorsed  thereon  by  a  justice  of  the  peace,  that 
he  had  solemnized  the  marriage,  was  admitted  in  evidence,  the  official 
character  of  the  officer  granting  the  license,  and  also  that  of  the  justice 
of  the  peace,  being  certified  by  the  clerk,  the  keeper  of  the  records,  under 
his  official  seal,  and  the  presiding  justice  having  certified  to  the  author- 
ity and  official  character  of  the  clerk:  Held  that  the  license  and  certifi- 
cates were  properly  admitted.    King  v.  Dale,  513 

56.  On  the  trial  of  the  right  of  property  levied  pn  by  attachment,  the  writ  of 
attachment  and  return  thereon,  are  admissible  in  evidence.     Sheldon  v. 
Reihle  et  al.,  519 

57.  In  an  action  by  the  old  State  Bank  of  Illinois,  upon  a  promissory  note 
given  in  satisfaction  of  two  judgments  recovered  upon  promissory  notes 
executed  to  said  bank  in  consideration  of  bills  of  8aid  bank  which  had 
been  declared  by  the  Supreme  Court,  to  be  bills  of  credit  emitted  by 
the  State,  in  contravention  of  the  Constitution  of  the  United  States,  the 
defendants  offered  to  show  the  consideration  of  the  judgments  in  bar  of 
the  action :  Held,  that  the  evidence  was  inadmissible,  and  that  the  valid- 
ity of  the  judgments  could  not  be  impeached  in  such  action.    Mitchell 
et  al.  v.  The  State  Bank  of  Illinois,  526 

58.  Where  a  witness  for  the  defendant,  on  the  trial  of  a  cause,  stated  that  he 
carried  a  message  from  the  defendant  to  the  plaintiff,  and  the  counsel 
for  the  plaintiff  thereupon  asked  the  witness,  "  What  was  his  reply?" 
and  the  defendant  objected  to  the  witness's  answering  the  question,  and 
the  Court  overruled  the  objection:  Held,  that  the  decision  of  the  Court 
was  correct.    Johnson  v.  Moulton,  532 

59.  At  common  law,  in  an  action  by  S.  W.  and  H.  L.,  on  a  promissory  note 
made  payable  to  W.  and  L.,  without  mentioning  their  Christian  names, 
the  presumption  would  be  that  the  plaintiffs,  being  holders  of  the  note, 

672 


INDEX.  633 

were  the  persons  to  whom  the  promise  was  made,  until  the  contrary 
was  shown.     Hollenbackv.  Williams  et  al.,  544 

60.  Under  the  statute  of  March  2,  1839,  in  a  suit  on  a  promissory  note,  it  is 
not  necessary  for  the  holders  to  show  that  they  are  the  persons  described 
in  the  note  as  payees,  by  their  surnames,  where  the  general  issue    is 
pleaded.    Ibid.,  Ml 

61.  Semble,  That  the  rule  is  the  same,  whether  the  action  was  commenced 
and  plea  filed  before  or  since  the  passage  of  the  act.    Ibid.,  544 

62.  In  an  action  by  an  indorsee  or  payee  against  the  maker,  upon  a  prom- 
issory note  payable  at  a  specified  time  and  place,  it  is  not  necessary  to 
aver  in  the  declaration,  or  prove  on  the  trial,  a  presentment  of  the  note 
for  payment.     Armstrong  v.  Caldwell,  546 

63.  In  an  action  against  the  makers,  upon  a  promissory  note  executed  in  a 
co-partnership  name,  one  of  the  defendants — the  general  issue  being 
pleaded — offered  to  read  in  the  evidence,  on  the  trial,  a  notice  of  the 
dissolution  of  the  co-partnership,  published  in  the  Galena  Gazette,  a 
public  newspaper,  long  before  the  execution  of  the  note.     He  afterward 
offered  to  prove  by  a  witness,  that  long  before  the  making  of  the  note  in 
question,  there  was  no  co-partnership  existing  between  the  defendants, 
and  that  the  plaintiffs  had  notice  thereof  before,  and  at  the  time  of  the 
making  of  the  promissory  note  declared  on,  which  the  court  rejected : 
Held,  that  the  evidence  was  admissible.     Whitesides  v.  Leeet  al.,    548 

64.  Quere,  Whether  this  would  be  the  decision,  if  the  suit  had  been  com- 
menced and  the  plea  filed  subsequently  to  the  passage  of  the  act  of  March 
2,  1839,  "regulating  evidence  in  certain  cases.'11    Ibid.,  548 

65.  It  does  not  follow  as  a  necessary  consequence  to  the  asking  of  a  ques- 
tion of  a  witness  on  the  trial  of  a  cause,  that  the  answer  will  be  in  the 
affirmative;  and  unless  the  answer  constitutes  illegal  testimony  for  the 
party  calling  the  witness,  it  is  no  ground  of    exception.     Miller  v. 
Houcke  etal.,  501 

66.  In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice  of  the  peace  of 
another  State,  to  be  received  in  evidence  in  this  State,  it  must  be  shown 
that  by  the  laws  of  the  State  where  the  judgment  was  rendered,  the  jus- 
tice had  jurisdiction  over  the  subject-matter  upon  which  he  attempted  to 
adjudicate.     Trader  et  al.  v.  McKee,  558 

67.  A  transcript  of  a  judgment  of  a  justice  of  the  peace  of  Wayne  county,  in 
Indiana,  purported  to  be  certified  by  his  successor  in  office,  and  the  clerk 
of  the  Circuit  Court  of  Wayne  county  certified  as  to  the  capacity  of  said 
successor  in  office,  and  the  judge  of  the  sixth  Judicial  Circuit^  in  Indi- 
ana, certified  as  to  the  capacity  of  the  said  clerk:  -Held,  that,  in  the  ab- 
sence of  proof  that  the  statute  of  Indiana  authorized  the  clerk  to  give 
such  certificate,  he  could  not  give  a  certificate  in  such  a  case,  that  would 
be  evidence  in  a  court  of  justice.     Ibid.,  558 

68.  The  State  Register,  being  made  by  law  the  public  paper  in  which  the 
official  acts  of  the  Governor  required  to  be  made  public,  are  published, 
is  correctly  admitted  in  the  evidence  to  prove  the  existence  of  facts 
stated  in  the  Governor's  Proclamation.     Lurtonv.  GiUiamet  al..    577 

69.  The  Proclamation  of  the  Governor  declaring  who  is  elected  to  Congress, 
is  vrima  facie  evidence  of  the  facts  therein  stated.    Ibid.,  577 

70.  It  is  a  well  settled  rule  of  law,  that  in  trials  by  jury,  the  weight  of 
testimony  is  a  question  to  be  decided   by  the  jury  exclusively.     The 
decision,  consequently,  can  not  be  assigned  for  error.   Johnson  v.  Moul- 
ton,  532 

71.  Semble,  That  on  an  application   to  a  Circuit  Court  to  set  aside  a  ver- 
dict of  a  jury  because  it  is  against  the  weight  of  testimony,  the  case 
must  be  a  flagrant  one  to  justify  the  Court  in  disturbing  the   verdict. 
Ibid.,  53- 

See  ALIMONY;  BILL  OF  EXCEPTIONS;  CRIMINAL  LAW;  DEED,  5,  6;  DEPOSI- 
TION; EJECTMENT,  9;  JUSTICE  OF  THK  PEACE;  PLEADING;  NOTICE; 
PROMISSORY  NOTE;  WITNESS. 
VOL.  1-43  671 


634  INDEX. 

EXECUTION. 

1.  In  proceedings  against  a  sheriff,  under  §  30  of  the  practice  act,  by  motion 

for  failing  to  pay  over  money  collected  by  him  on  execution,  the 
judgment  should  be  for  the  amount  collected,  and  interest  thereon, 
at  the  rate  of  twenty  per  centum  per  annum.  Beciird  v.  Foreman, 

40 

2.  Semble,  That  where  a  judgment  is  assigned,  execution  should  issue  in 

the  name  of  the  assignor.  The  assignment  does  not  change  the  form  of 
the  execution,  or  the  parties  to  it.  Elliott  v.  Sneed,  517 

3.  A  party  intending  to  move  to  quash  an  execution,  should  give  the  opposite 

party  notice  of  his  intended  motion.  Where  an  execution  was  quashed 
without  such  notice,  the  Supreme  Court  reversed  the  decision,  and  re- 
manded the  cause.  Dazey  v.  Orr  et  al.,  535 

4.  The  Court  from  which  an  execution  issues  after  the  satisfaction  of  a  judg- 

ment, should,  on  motion,  set  aside  the  execution  and  sale  under  it. 
Russell  v.  Hugunin  et  al.,  562 

5.  Where  a  judgment  was  recovered  by  H.  against  R.  and  P.,  on  a  note, 

and  H.  gave  an  order  to  B.  on  H.'s  attorney,  for  the  proceeds  of  the 
note  when  collected,  and  P.  afterward  arranged  the  matter  by  deposit- 
ing the  amount  of  the  judgment  with  B.,  and  P.  brought  a  memoran- 
dum to  that  effect  from  B.  to  one  of  H.'s  attorneys,  who  was  also  the 
general  attorney  of  B.,  and  P.  stated  to  the  attorney,  that  he  did  not 
wish  the  judgment  satisfied,  but  wished  to  use  the  judgment  so  as  to 
protect  himself,  as  the  judgment  was  a  lien  on  R.'s  real  estate,  to  which 
the  attorney  assented,  and  directed  execution  to  issue,  which  was  issued, 
and  the  property  of  R.  sold  under  it  by  the  sheriff  who  received  his  in- 
structions from  P.,  who  purchased  the  property;  and  after  the  sale  the 
sheriff  paid  over  to  the  attorney  P.'s  check  on  B.  for  the  amount  of  the 
judgment,  and  the  attorney  receipted  the  execution  and  paid  the  check 
to  B.,  which  was  credited  to  H.  on  the  books  of  B. :  Held,  that  the 
judgment  was  satisfied  by  the  arrangement  made  with  B.  before  the 
sale,  it  appearing  that  B.  so  understood  it;  and  it  being  proved  that  P. 
had  declared  that  he  had  paid  it,  and  represented  to  a  person  of  whom 
he  obtained  a  loan  of  money  on  mortgage,  that  the  judgment  was  satis- 
fied. Held,  also,  that  it  was  competent  for  H.  or  P.  to  have  shown  that 
thp  payment  to  B.  was  not  in  extinguishment  of  the  judgment.  Ibid., 

562 

EXECUTOR. 
See  ADMINISTRATOR. 

EXEMPLIFICATION  OF  RECORDS. 
See  RECORDS  4,  8,  9, 10. 

FEES. 

1.  The  remedy  given  by  statute  to  collect  fees  by  making  out  a  fee  bill  and 

delivering  it  to  an  officer,  is  a  cumulative  remedy,  but  it  does  not  take 
away  the  common  law  remedy  by  suit.  Morion  v.  Bailey  et  al.,  213 

2.  It,  is  competent  for  the  legislature  to  repeal  a  law  creating  an  office,  be- 

fore the  expiration  of  the  term  of  office  of  the  incumbent;  and  after 
such  repeal  the  officer  is  entitled  to  no  further  compensation,  though 
his  term  of  office,  according  to  the  provisions  of  the  law,  under  which 
he  was  appointed,  has  not  expired.  The  People  v.  The  Auditor,  537 

See  GRAND  JURY,  1;  SURVEYOR. 

FENCES. 

1.  A  purchaser  of  land  from  the  government  of  the  United  States  or  of  this 
State,  requires  the  right  to  all  the  improvements  made  upon  it  anterior 
674 


INDEX.  635 

to  his  purchase.  The  act  of  February  23,  1819,  giving  the  right  to  re- 
move fences  made  by  mistake  upon  the  lands  of  other  persons,  applies 
only  to  natural  persons ;  it  has  no  relation  to  a  case  where  a  fence  is 
erected  by  mistake  upon  the  lands  of  the  United  States  or  of  this  State. 
Blair  v.  Worley,  .  178 

2.  In  proceedings  under  the  "Act  regulating  inclosures,"  it  is  necessary 

that  the  justices  of  the  peace  before  whom  proceedings  are  had,  should 
notify  the  defendant  of  the  same.  Holliday  v.  Swailes,  515 

3.  An  appeal  lies  from  the  decision  of  two  justices  of  the  peace,  under  the 
"Act  regulating  inclosures."    Ibid.,  515 

FICTITIOUS  CAUSES. 

1.  Where  the  court  have  reason  to  believe  that  a  cause  is  fictitious,  they  will 
require  proof  that  the  action  is  not  feigned.  McConnell  v.  Shields, 

582 

FILING  PAPERS. 

See  FOREIGN  LAWS;  RECORDS. 

I 
FORCIBLE  ENTRY  AND  DETAINER. 

1.  To  constitute  a  forcible  entry  and  detainer  under  the  statute  of  this  State, 

it  is  not  necessary  that  actual  force  and  physical  violence  should  be 
used.  Atkinson  v.  Lester  et  al.,  407 

2.  The  statute  in  relation  to  forcible  entry  and  detainer  provides  for  three 

cases: 

1.  A  wrongful  or  illegal  entry,  as  contradistinguished  from  a  forcible 
and  violent  one. 

2.  A  forcible  entry  committed  with  actual  force  and  violence. 

3.  A  wrongful  holding  over  by  a  tenant.    Ibid.,  407 

3.  In  an  action  for  forcible  entry  and  detainer,  the  description  of  the  prem- 

ises in  the  affidavit,  was  as  follows:  "The  premises  inclosed  by  us, 
situate  in  the  county  of  Cook,  and  State  of  Illinois,  being  the  same  on 
which  you  now  reside,  containing  about  one  hundred  acres,  more  or 
less,  and  commonly  called  North  Grove:"  Held,  that  the  description 
was  sufficient.  Ibid. ,  407 

4.  The  statute  of  the  State  of  Illinois,  in  relation  to  forcible  entry  and  de- 

tainer, is  more  comprehensive  than  the  English  act.  It  authorizes  the 
action  to  be  maintained  against  a  lessee  who  holds  over,  after  the  deter- 
mination of  his  lease,  whether  he  holds  by  force  or  not,  provided  the 
lessor  has  given  him  notice  to  quit.  Mason  v.  Finch,  495 

5.  One  joint  tenant  or  tenant  in  common  may  maintain  an  action  for  forci- 

ble entry  and  detainer  against  his  co-tenant.    Ibid.,  495 

FORECLOSURE. 
See  SCIRE  FACIAS. 

FORTS. 

1.  The  assent  of  a  State  legislature  is  necessary  to  the  erection  by  the  U. 
S.,  of  forts  and  permanent  garrisons  within  the  boundaries  of  a  State. 
McConnell  v.  Wilcox,  844 

FORTHCOMING  BOND. 
See  EVIDENCE,  7,  8. 

FRAUD  AND  FRAUDULENT  CONVEYANCES. 

1.  A  parol  contract  for  the  purchase  of  land,  is  not  absolutely  void,  but  only 

voidable  under  the  statute  of  frauds.      Whitney  v.  Cochran  et  al.,    209 

2.  A  deed  made  upon  valuable  consideration,  does  not  come  within  the  pro- 

675 


636  INDEX. 

visions  of  the  statute  of  frauds  and  perjuries.  Thornton  v.  Davenport 
etal,  296 

3.  All  conveyances  of  goods  and  chattels,  where  the  possession  is  permitted 

to  remain  with  the  donor  or  vendor,  is  fraudulent  per  se,  and  void  as 
to  creditors  and  purchasers,  unless  the  retaining  of  possession  be  con- 
sistent with  the  deed.  Ibid, ,  296 

4.  But  where  from  the  nature  and  provisions  of  the  conveyance,  the  pos- 

session is  to  remain  with  the  vendor,  and  the  transaction  is  bona  fide, 
its  so  remaining  is  consistent  with  the  deed,  and  does  not  avoid  it. 
Ibid.,  296 

5.  The  fact  that  a  mortgage  was  executed  upon  the  same  day  that  a  judg- 

ment was  obtained  against  the  mortgagor,  unaccompanied  by  other  cir- 
cumstances calculated  to  cast  suspicion  upon  the  transaction,  is  not  in 
itself  sufficient  to  attach  to  it  the  imputation  of  fraud.  Ibid.,  296 

6.  Mortgages,  marriage  settlements,  and  limitations  over  of  chattels,  are 

valid  against  all  persons  without  delivery  of  possession,  provided  the 
transfer  be  bona  fide,  and  the  possession  remain  with  the  person  shown 
to  be  entitled  to  it  by  the  stipulations  of  the  deed.  Ibid.,  296 

7.  Semble,  That  an  absolute  sale  of  personal  property,  where  the  possession 

remains  with  the  vendor,  is  void  as  to  creditors  and  purchasers,  though 
authorized  by  the  terms  of  the  bill  of  sale.  Ibid.,  296 

8.  To  constitute  actual  fraud  between  two  or  more  persons,  to  the  prejudice 

of  a  third,  contrivance  and  design  to  injure  such  third  person  by  depriv- 
ing him  of  some  right,  or  otherwise  impairing  it,  must  be  shown. 
Actual  fraud  is  not  to  be  presumed,  but  ought  to  be  proved  by  the  party 
who  alleges  it;  and  if  the  motive  and  design  of  an  act  may  be  traced  to 
an  honest  and  legitimate  source  equally  as  to  a  corrupt  one,  the  former 
ought  to  be  preferred.  McConnell  v.  Wilcox,  344 

9.  Fraud  may  consist  in  making  a  false  representation  with  the  knowledge 

at  the  time  that  it  is  false,  with  a  design  to  deceive  and  defraud,  or  in 
the  willful  concealment  of  the  truth,  for  a  similar  purpose.  Ibid.,  344 

10.  The  section  of  the  statute  of  frauds  and  perjuries,  which  declares  void 
as  to  creditors  and  purchasers,  all  conveyances  of  goods  and  chattels, 
made  upon  considerations  not  deemed  vahiable  in  law,  unless  possession 
shall  remain  with  the  donee,  or  unless  the  conveyances  be  recorded,  has 
no  relation  to  a  deed  made  upon  a  valuable  consideration.     The  statute 
applies  to  deeds  for  personal  property  made  upon  good  consideration 
only,  as  distinguished  from  valuable.     Kifchell  v.  Bratton,  300 

11.  The  rule  governing  conveyances  of  personal  property,  is,  that  unless 
possession  shall  accompany  and  follow  the  deed,  the  conveyance  by  legal 
inference  is  fraudulent  and  void  as  to  creditors.    Ibid.,  300 

12.  Where  B.  agreed,  by  parol,   to  purchase  of  L.  a  tract  of  land,  and  to 
pay  i$400  for  the  same,  in  four  equal  annual  installments,  but  no  memo- 
randum in  writing  was  made  of  the  bargain,  and  some  time  afterward 
a  note  was  executed  for  the  amount  then  due,  of  the  principal  of  said 
purchase  money,  and  a  deed  made  for  the  land,  but  the  parties  not 
agreeing  as  to  the  rate  of  interest  for  the  time  payment  had  been  de- 
layed, that  was  left  for  future  adjustment:    Held,  that  the  contract  to 
pay  interest  was  not  within  the  statute  of  frauds.     Said  agreement  to 
purchase  the  land  was  made  in  1824,  and  the  note  was  executed  in  1832. 
The  suit  was  instituted  in  1835.     Prevo  v.  Lathrop,  305 

13.  Fraud  can  not  exist  without  an  intention  to  deceive.     Miller  v.  Howell, 

499 

14.  In  an  action  upon  a  promissory  note,  given  fora  town  lot,  and  assigned 
after  it  became  due,  the  maker,  to  show  that  the  consideration  had  failed, 
offered  to  prove  that  the  payees  of  the  note,  as  proprietors    of  the 
town  in  which  the  lot  was  situated,  publicly  proclaimed,  on  the  day  of 
the  sale  of  the  lot,  that  they  would  build  a  storehouse  in  the  town,  two 
stories  high,  forty  by  twenty-four  feet,  by  the  1st  of  August  following 
the  day  of  sale;  and  that  they  would  construct  a  bridge  across  the  Big 
Macoupin,  in  the  said  town;  but  that  they  had  failed  so  to  do:  Held, 
that  it  would  be  no  defense  to  the  note,  and  that  such  proof  would  not 

676 


INDEX.  637 


be  evidence  of  fraud,  unless  it  was  a'so  shewn  that  the  proprietors  of 

said  town  made  such  declarations  deceitfully.    Ibid.,  499 

15.  Semble,  That  fraud  can  not  be  given  in  evidence  to  impeach  a  deed,  in 

an  action  of  ejectment.     Williams  v.  Clay  tor  et  al.,  502 

See  ADMINISTRATOR,  2,  3;  CONTRACT,  12;  PROMISE;  PROMISSORY  NOTES; 
PUBLIC  LANDS. 

FREIGHT. 

1.  Where  the  plaintiff  brought  an  action  of  assumpsit  to  recover  the 
amount  of  freight  agreed  to  be  paid  by  the  defendants  for  the  transpor- 
tation of  their  goods  from  Buffalo  to  Chicago,  and  the  defendants 
pleaded  the  general  issue,  and  gave  notice  of  their  intention  to  give  in 
evidence  under  the  plea,  that  a  portion  of  the  goods  agreed  to  be  trans- 
ported, exceeding  in  value  the  whole  amount  of  the  freight  claimed, 
was,  through  the  negligence,  carelessness  and  improper  conduct  of  the 
plaintiff,  lost  and  destroyed  on  the  voyage ;  and  on  the  trial  offered  to 
introduce  such  evidence,  first,  by  way  of  set-off,  and  secondly,  by  way 
of  reducing  the  damages  claimed:  Held,  that  the  evidence  was  admissi- 
ble as  well  as  a  set-off,  as  in  reduction  of  damages.  Edwards  et  al.  v. 
Todd,  462 

GAMING. 
See  CONTRACTS,  17. 

GARNISHEE  IN  AN  ATTACHMENT. 

See  CONSTABLE,  8  ;  RIGHT  OF  PROPERTY,  7. 

GOODS  AND  CHATTELS. 

See  FRAUDS. 

GOVERNOR'S  PROCLAMATION. 

See  EVIDENCE,  68, 69. 

GRAND  JURY. 

1.  A  grand   jury  have  no  power  to  inquire  whether  an  officer  has  been 

guilty  of  taking  illegal  fees  for  the  service  of  process.     Pankey  v.  The 
People,  80 

2.  An   indictment  purporting  to  be  found   by  "grand  jurors  chosen,  se- 

lected, and  sworn,  in  and  for  the  City  of   Chicago  and  County  of 
Cook,"  is  bad,  and  should  be  quashed  on  motion.     Bell  v.  The  People, 

397 
See  INDICTMENT. 

HABEAS  CORPUS. 
See  JURISDICTION  OF  THE  SUPREME  COURT. 

HIGHWAY. 

1.  The  law  is  well  settled  that  every  person  who  erects  an  obstruction  across 
a  public  highway,  is  liable  for  all  the  injuries  that  result  from  it.  It  is 
consequently  no  excuse  that  another  obstruction  would  have  produced 
the  same  effect.  Clark  v.  Lake,  229 

IDENTITY. 

See  EVIDENCE,  7. 

IMPROVEMENTS. 
1    A  purchaser  of  land  from  the  government,  is  under  no  moral  or  legal  ob- 

677 


638  INDEX. 

ligation  to  pay  for  improvements  made  thereon  before  his  purchase,  and 
without  his  request.  Carson  v.  Clnrk,  113 

2.  The  statute  of  1831,  in  relation  to  the  sale  of  improvements  upon  public 
lands  has  no  application  to  a  promise  made  by  a  purchaser  of  a  portion 
of  such  lands  after  such  purchase,  to  pay  for  improvements  made  upon 
the  same  while  it  belonged  to  the  United  States.  It  applies  only  to  con- 
tracts respecting  the  sale  of  improvements,  which  at  the  time  the  contract 
is  entered  into,  are  on  the  land  owned  by  the  government.  Hutson  v. 
Overturf,  170 

8.  A  purchaser  of  land  from  the  government  of  the  United  States,  or  of  this 
State,  acquires  the  right  to  all  the  improvements  made  upon  it  anterior 
to  his  purchase.  The  act  of  February  23,  1819,  giving  the  right  to  re- 
move fences  made  by  mistake  upon  the  land  of  other  persons,  applies  only 
to  natural  persons;  it  has  no  relation  to  a  case  where  a  fence  is  erected  by 
mistake  upon  the  lands  of  the  United  States,  or  of  this  State.  Blair  v. 
Worley,  178 

4.  In  order  to  sustain  an  action  to  recover   pay  for  improvements  made 

upon  the  public  lands,  all  that  it  is  necessary  to  prove,  is,  that  the  de- 
fendant promised  expressly  to  pay  for  the  improvements.  If  the 
price  to  be  paid  be  not  agreed  on,  the  contract  is  binding,  and  the  value 
of  the  improvements  must  be  ascertained  by  proof.  Johnson  v.  Moul- 
ton,  532 

5.  A  promise  by  a  purchaser  of  a  portion  of  the  public  lands  of  the  U.  S., 

made  subsequent  to  his  purchase,  to  pay  for  improvements  made  thereon 
previous  thereto,  is  without  consideration  and  void.  Roberts  v.  Garen, 
396 ;  Carson  v.  Clark,  113 ;  Hutson  v.  Overturf,  170 ;  Townsend  v. 
Briggs,  472 

6.  In  an  action  to  recover  upon  a  promise  to  pay  for  improvements  made 

upon  the  public  lands  of  the  U.  S.,  it  is  incumbent  upon  the  plaintiff  to 
prove  not  only  the  promise  of  the  defendant,  but  that  the  improve- 
ments which  are  the  consideration  of  the  promise,  were  at  the  time 
the  contract  was  entered  into,  upon  the  lands  of  the  government.  Rob- 
erts v.  Garen,  396 

See  CONTRACT;  PROMISE. 

INCIDENTAL  POWERS. 
See  ADMINISTRATOR,  3. 

INCLOSURES. 
See  FENCES. 

INDENTURES. 
See  NEGROES  AND  MULATTOES. 

INDICTMENT. 

1.  The  value  'of  the  property  burned  must  be  stated  in  an  indictment  for 

arson.     Clark  v.  The  People,  117 

2.  Acts  of  official  misconduct  by  justices  of  the  peace,  done  with  corrupt 

motives,  are  indictable  offenses.  An  indictment  charging  that  the  de- 
fendant, a  justice  of  the  peace,  took  up  certain  estray  animals,  specify- 
ing the  number  and  kind,  and  corruptly  caused  the  same  to  be  appraised 
before  himself  as  such  justice,  is  substantially  good.  Wickersnam  v. 
The  People,  128 

8.  An  indictment  for  an  assault  with  intent  to  kill  and  murder,  should  not 
only  charge  the  intent  to  have  been  malicious  and  unlawful,  but  the 
felonious  intent,  and  the  extent  of  the  crime  intended  to  be  perpe- 
trated, should  be  distinctly  set  forth.  Curtis  v.  The  People,  285 

4.  Proof  that  defendant  stole  a  mare  or  a  gelding,  will  sustain  an  indictment 
for  stealing  a  horse.  Baldwin  v.  The  People,  o04 

678 


INDEX.  639 

5.  An  indictment  alleging  that  the  animal  was  stolen  and  carried  away. 

will  be  sustained  by  proof  that  it  was  ridden,  driven  or  led  away.   Ibid., 

304 

6.  An  indictment  purporting  to  be  found  by  "  grand  jurors  chosen,  se- 

lected and  sworn,  in  and  for  the  City  of  Chicago  and  County  of  Cook." 
is  bad,  and  should  be  quashed  on  motion.  BcU  v.  The  People,  397 

7.  It  is  well  settled  that  in  indictments  for  offenses  against  the  persons  or 

property  of  individuals,  the  Christian  and  surnames  of  the  parties  in- 
jured, must  be  stated,  if  known.  In  cases  where  the  owners  are  un- 
known, the  fact  must  be  so  stated.  Willis  v.  The  People,  399 

8.  Where  the  second  count  in  an  indictment,  the  first  having  been  quashed 

because  it  did  not  state  the  presentment  to  be  upon  oath,  recited  that 
"The  grand  jurors  aforesaid,  chosen,  selected  and  sworn  as  aforesaid, 
in  the  name  and  by  the  authority  of  the  People  of  the  State  of  Illinois 
aforesaid,  on  their  oaths  aforesaid,  do  further  present:"  Held,  that  the 
count  was  sufficient.  Duncan  v.  The  People,  456 

9.  That  portion  of  an  indictment  which  recites  the  choosing,  selecting  and 

swearing  of  the  grand  jury,  according  to  the  form  prescribed  in  §  152 
of  the  Criminal  Code,  is  not  a  count  or  a  portion  of  a  count  of  the  in- 
dictment; it  is  only  the  caption.  Ibid.,  _  -456 

10.  A  motion  to  quash  an  indictment  containing  two  counts,  which  is  sus- 
tained as  to  the  first,  and  overruled  as  to  the  second,  does  not  affect  the 
caption  of  the  indictment.     Ibid.,  456 

11.  All  mere  formal  objections  to  an  indictment  should  be  made  before 
pleading.     Guykowski  v.  The  People,  476 

See  VENUE. 

INFANT  AND  INFANCY. 

1.  Where  the  plaintiff  brought  an  action  before  a  justice  of  the  peace,  upon 

a  bond  made  by  the  defendant  while  an  infant,  and  upon  the  trial  the 
defendant  pleaded  and  proved  his  infancy  in  bar;  and  thereupon  the 
plaintiff  made  oath  that  he  knew  of  no  witness  by  whom  he  could  prove 
the  defendant's  agreement  since  he  became  of  age,  to  pay  him  $18  in 
full  of  the  bond,  except  by  his  own  oath,  or  that  of  the  defendant,  anil 
prayed  that  the  defendant  might  be  sworn,  which  the  court  refused  to 
allow :  Held,  that  the  Court  decided  correctly,  because  the  proof,  if  ad- 
mitted, would  have  proved  a  different  cause  of  action  from  that  upon 
which  the  suit  was  brought.  Bliss  et  al.  v.  Ferryman,  48-i 

Semble,  That  an  infant  can  not  bind  himself  by  bond.    Ibid,,  484 

2.  Where  a  plaintiff  relies  upon  a  new  promise,  made  after  the  defendant 

became  of  age — the  original  contract  having  been  made  during  infancy 
— he  should  declare  on  the  new  contract.  Ibid.,  484 

3.  Infancy  is  not  a  dilatory  plea.     Greerv.  Wheeler,  654 

INJUNCTION, 
See  CHANCERY,  6. 

INSOLVENTS. 
See  MORTGAGE.  1. 

INSTRUCTIONS. 

1.  It  is  not  in  the  power  of  a  party  to  except  to  the  opinion  of  the  Court  re- 

fusing instructions,  unless  he  move  them  himself.     Bailey  v.  Campbell, 

2.  Instructions  to  the  jury  should  be  founded  upon  the  evidence  in  the  case: 

and  where  there  is  no  evidence  upon  which  to  base  the  instructions,  it 
is  error  to  give  them.  Humphreys  v.  Collier  et  al.,  47 

3.  If  the  Court,  in  giving  instructions  to  the  jury,  use  an  ambiguous  word, 

but  at  the  same  time  the  language  of  the  statute,  the  party  who  desires 

67V 


640  INDEX. 

more  explicit  instructions  upon  the  meaning  of  the  term,  should  ask 
such  explanations  as  1  e  may  deem  necessary.  If  he  fail  to  do  no,  it  is 
too  l.itt1  to  c.Hiip'ain  in  the  Supreme  Court.  Bailey  v.  Campbell,  110 

4.  The  refusal  of  the  Circuit  Court  to  instruct  the  jury  that  there  was  no 

evidence  of  a  fact  which  the  testimony  tended  to  prove,  can  not  be  as- 
signed for  error.  Morfonv.  Gately,  211 

5.  In  an  action  brought  by  P.,  as  assignee  of  M.,  to  recover  the  amount  of  a 

promissory  note  made  by  B.,  the  court  gave  the  following  instructions 
to  the  jury:  "  That  if  the  jury  believe  from  the  evidence  that  B.  and 
M.  made  a  lumping  trule;  that  if  B.  agreed  to  give  $615  for  M.'s  in- 
terest, whatever  it  might  be,  (meaning  the  interest  in  the  partnership 
concern  in  which  they  were  both  interested,  and  to  which  the  making 
of  the  note  related),  and  was  not  deceived  or  imposed  on  by  any  false 
and  fraudulent  representations  or  concealments,  then  made  by  M.,  then 
the  note  is  founded  on  a  good  consideration,  and  is  binding  on  B:" 
Held,  that  the  instruction  was  correct.  Peck  v.  Boagess,  281 

6.  Unless  a  party  excepts  to  instructions  in  the  Court  below,  he  can  not  as- 

sign them  for  error  in  the  Supreme  Court.    Ibid,,  281 

7.  A  party  can  not  assign  for  error  an  erroneous  instruction  favorable  to 

him.     KitcheU  v.  B  raft  on,  300 

8.  Where  an  erroneous  instruction  is  given  to  the  jury,  but  the  bill  of  ex- 

ceptions does  not  enable  the  Court  to  see  what  effect  it  probably  had  up- 
on their  verdict,  the  judgment  of  the  Court  below  will  be  reversed.  The 
bill  of  exceptions  should  have  stated  the  proof  upon  the  point.  Ibid., 

300 

9.  Where  the  evidence  tends  to  prove  the  issue,  the  jury  should  be  left  to 

determine  the  cause  under  the  evidence  offered.  In  such  a  case,  the 
Court  has  no  power  to  take  the  cause  from  them,  nor  to  advise  them  that 
the  defendant  is  entitled  to  their  verdict.  Davis  v.  Hoxey,  406 

10.  A  court  is  not  bound  to  instruct  the  jury  upon  mere  abstract  propositions 
of  law,  which  do  not  refer  in  any  way  to  the  evidence  in  the  case. 
Atkinson  v.  Lester  et  al.,  407 

11.  Instructions  to  a  jury  upon  an  inquest  of  damages,  are  mere  interlocu- 
tory matters,  and  the  Supreme  Court  has  no  right  to  re-examine  them. 
Gillet  et  al.  v.  Stone  et  al.,  539 

See  PRACTICE,  46. 

INTEREST. 

1.  In  proceedings  against  a  sheriff,  under  §  30  of  the  practice  act,  by  motion 

for  failing  to  pay  over  money  collected  by  him  on  execution,  the  judg- 
ment should  be  for  the  amount  collected,  and  interest  thereon,  at  the 
rate  of  twenty  per  centum  per  annum.  Beaird  v.  Foreman,  40 

2.  Interest  is  the  legal  damages  or  penalty  for  the  unjust  detention  of  mo- 

ney.    Madison  County  et  eel.  v.  Bartlett,  67 

3.  A  county  is  not  bound  to  pay  interest  on  county  orders.    Ibid.,  67 

4.  Where  a  judgment  is  rendered  by  a  justice  of  the  peace  upon  a  note  bear- 

ing interest,  and  an  appeal  is  taken  to  the  Circuit  Court,  in  computing 
the  amount  due  on  the  note,  interest  should  be  calculated  upon  the  note 
to  the  time  of  rendition  of  the  judgment  in  the  Circuit  Court,  and  not  on 
the  judgment.  Tindall  v.  Meeker,  137 

5.  Interest  may  be  calculated  at  any  rate  that  the  parties  may  agree  upon. 

Ibid.,  137 

6.  The  words  "  with  three  dollars  per  month  interest  after  due  till  paid," 

mean  three  dollars  per  month,  or  thirty-six  dollars  per  annum,  and  not 
that  interest  should  be  calculated  at  the  rate  of  thirty-six  per  centum  per 
annum.  The  interest  for  one  year  on  a  note  for  thirty  dollars  and 
seventy-five  cents,  "with  three  dollars  per  month  interest, "  is  thirty- 
six  dollars.  Latham  v.  Darling,  203 

7.  Where  no  specific  agreement  is  entered  into  in  relation  to  the  rate  of 

interest,  the  law  will  presume  that  the  legal  rate  was  intended.  Prero 
v.  Lathrop,  305 

680 


INDEX.  641 

8.  Where  B.  agreed,  by  parol,  to  purchase  of  L.  a  tract  of  land,  and  to  pay 

8400  for  thp  same,  in  four  equal  annual  installments,  but  no  memoran- 
dum in  writing  was  made  of  the  bargain,  and  some  time  afterward  a 
note  was  executed  for  the  amount  then  due,  of  the  principal  of  said  pur- 
chase money,  and  a  deed  made  for  the  land,  but  the  parties  not  agree- 
ing as  to  the  rate  of  interest  for  the  time  payment  had  been  delayed, 
that  was  left  for  future  adjustment:  Held,  that  the  contract  to  pay  in- 
terest was  not  within  the  statute  of  frauds.  Said  agreement  to  pur- 
chase the  land,  was  made  in  1824,  and  the  note  was  executed  in  1832. 
The  suit  was  instituted  in  1835.  Heid,  also,  that  the  contract  for  inter- 
est was  not  barred  by  the  statute  of  limitations.  Ibid.,  305 

9.  The  statute  regulating  the  amount  of  interest  which  a  borrower  of  the 

school  fund  shall  be  subject  to  pay,  as  a  penalty  for  not  paying  the  prin- 
cipal and  interest  punctually,  when  due,  do?s  not  authorize  a  judgment 
for  interest  in  futuro,  and  it  can  not  be  rendered  at  common  law. 
Pearsons  v.  Hamilton,  415 

10.  Semble,  That  in  an  action,  by  scire  facias,  to  foreclose  a  mortgage  to 
the  School  Fund,  the  jury  may  assess  a  penalty  of  twenty  per  cent,  upon 
the  amount  of  principal  and  interest,  after  the  mortgage  became  due, 
although  there  is  no  averment  of  the  penalty  in  the  scire  facias.   Ibid., 

415 

11.  Interest  is  recoverable  upon  an  account  for  goods  sold,  from  the  time  the 
amount  is  ascertained  by  the  parties;  and  when  a  demand  is  sued  before 
a  justice  of  the  p.>ace,  and  appealed  to  the  Circuit  Court,  that  Courtmay 
give  judgment  for  more  than  the  amount  claimed  before  the  justice,  if 
the  excess  accrued  by  way  of  interest.     Lurtpn  v.  Gilliam  et  al.,    577 

12.  In  an  action  upon  a  note  given  to  the  Commissioner  of  School  Lands  of 
a  county,  for  money  loaned  of  the  School  Fund,  in  order  to  entitle  the 
plaintiff  to  recover  the  twenty  per  centum  penalty  given  by  the  statute 
of  18J5,  it  must  be  claimed  in  the   declaration.    Hamilton   v.    Wright, 

582 

18.  The  twenty  per  centum  interest  which  borrowers  of  the  School  Fund  are 
compelled  to  pay,  upon  a  failure  to  pay  the  principal  and  interest 
punctually,  is  given  as  a  penalty.  Ibid.,  582 

JOINT  TENANTS. 

1.  0?ie  joint  tenant,  or  tenant  in  common,  may  maintain  an  action  for 
forcible  entry  and  detainer  against  his  co-tenant.  Mason  v.  Finch, 

495 

JUDGMENTS  AND  DECREES. 

1.  In  proceedings  against  a  sheriff,  under  §  30  of  the  practice  act,  by  mo- 

tion for  failing  to  pay  over  money  collected  by  him  on  execution,  the 
judgment  should  be  for  the  amount  collected,  and  interest  thereon,  at 
the  rate  of  twenty  per  centum  per  annum.  Beaird  v.  Foreman,  40 

2.  Where  a  suit  is  brought  before  a  justice  of  the  peace,  which  terminates  in 

a  final  judgment  on  the  merits,  there  both  parties  shall  be  precluded 

.     from  further  litigation  in  relation  to  all  matters  that  might  have  been 

decided  in  that  case.     McKinney  v.  Finch,  152 

3.  Where  two  distinct  suits  are  brought  before  the  same  justice,  on  the 

same  day  upon  two  demands  which  might  be  consolidated  into  one  suit, 
and  which  when  thus  consolidated  would  not  exceed  8100,  and  one  suit 
is  dismissed,  and  judgment  is  rendered  in  the  other,  the  proceed- 
ings are  regular.  Ibid.,  152 

4.  The  dismissal  of  a  suit  by  a  justice  of  the  peace,  is  in  effect  a  nonsuit,  and 

does  not  bar  a  subsequent  suit  for  the  same  demand,  or  for  a  different 
cause  of  action.  Ibid.,  152 

5.  If  judgment  be  rendered  bv  default,  against  a  defendant  who  has  not 

been  served  with  process,  the  proceedings  are  coram  non  judice.  But 
the  reversal  of  such  a  judgment  does  not  affect  the  rights  of  the  plaint- 
iff below.  Ditch  v.  Edwards,  127 

661 


642  INDEX. 

6.  A  scire  facias  on  a  mortgage,  is  a  proceeding  in  rem;  and  the  judgment 

should  direct  the  sale  of  the  mortgaged  premises.  The  direction  ''th.it 
a  special  execution  issue  therefor,  according  to  the  statute  in  such  ca?;; 
made  and  provided,"  is  not  suih'cient.  Marshall  v.  Maury,  .  231 

7.  The  statute  makes  judgments  of  the  Circuit  Court  a  lien  upon  all  th ; 

lands  of  the  defendant  within  its  jurisdiction.  No  sale  or  transfer  of 
these  lands  after  judgment,  will  exempt  them  from  the  operation  of  an 
execution  at  any  time  within  seven  years.  Bustard  et  al.  v.  Morrifo-i 
etal,  235 

8    A  judgment  of  a  Circuit  Court  creates  no  lien  upon  lands  beyond  the  lim- 
its ot  the  county  in  which  such  judgment  is  rendered.    Ibid.,  2.">5 

9.  Where  judgment  is  rendered  for  the  plaintiff  on  demurrer  to  the  defend- 

ant's plea,  the  plaintiff  may  have  an  inquest  to  ascertain  the  damages, 
or  he  may  waive  this  and  take  judgment  for  nominal  damage?. 
Boon  v.  Juliet,  258 

10.  The  judgment  for  the  defendant  on  a  plea  in  abatement,  whether  it  bo 
an  issue  in  fact  or  in  law,  is  that  the  writ  or  bill  be  quashed;  or  if  a 
temporary  disability  or  privilege  be  pleaded,  that  the  plaint  remain 
without  day,  until,  etc.  McKinstry  v.  Pennoyer  et  al.,  319 

11.  Where  the  record  of  the  Circuit  Court  does  not  show  for  what  cause  an 
appeal  was  dismissed,  and  a  judgment  for  costs  is  rendered  against  the 
appellant,  the  judgment  will  be  reversed.    Kinman  v.  Bennett,        326 

12.  Tlie  Supreme  Court  will  not,  on  motion,  set  aside  a  default,  and  vacate 
a  judgment  of  a  Circuit  Court.     Aiken  v.  Deal,  327 

13.  A  judgment  by  default  is  irregular  unless  it  appear  by  a  return  on  the 
process,  that  it  had  been  served,  and  on  what  day  service  was  made. 
Garrett  v.  PheJps,  331 

14.  The  reversal  of  a  judgment  by  default,  where  process  from  the  Court  be- 
low had  not  been  served  on  the  defendant  in  that  Court,  does  not  preju- 
dice any  future  proceedings.    Ibid.,  331 

15.  A  judgment  binds  parties  and  privies.     Arenz  v.  Reihle  et  al.,          340 
Semble,   That  a  trial  of  the  right  of  property,  under  the  statute,  is  conclu- 
sive between  the  parties  and  privies.    Ibid.,  340 

16.  Where  an  attachment  was  levied  on  goods  in  the  possession  of  S.,  and 
upon  a  trial  of  the  right  of  property  between  S., ;  nl  the  attaching  frid't- 
ors,  the  property  was  found  to  be  subject  to  the  attachment,  and  S.  gave 
security  to  the  sheriff  who  attached  them,  for  their  return,  but  subse- 
quently put  them  into  the  possession  of  A.,  who  sold  them,  and  who  was 
thereupon  summoned  as  garnishee  in  the  attachment  suit:  Held,  that  in 
determining  whether  A.  was  liable  as  garnishee,  the  record  of  the  trial 
of  the  right  of  property  between  the  creditors  in  the  attachment  and  S., 
was  properly  admitted,  and  that  it  was  conclusive  as  to  the  ownership 
of  the  property.     Ibid.,  340 

17.  The  decision  of  the  Register  and  Receiver  of  a  Land  Office,  like  that  of 
all  other  tribunals  where  no  appeal  is  allowed,  is  final  and  conclusive, 
upon  all  the  facts  submitted  by  law,  to  their  examination  and  decision. 
Their  determination  in  relation  to  the  right  of  pre-emption  to  a  tract  of 
land  within  their  jurisdiction,  is  conclusive.     McConnell  v.    Wilcox, 

344 

18.  Where  the  record  shows  that  a  plea  was  filed  and  judgment  by  default 
rendered  on  the  same  day,  the  judgment  will  be  reversed.     The  court 
will  not  presume  that  the  plea  was  filed  after  the  judgment  was  ren- 
dered.    Lyon  \.  Barney,  387 

19.  In  an  action  of  assumpsit,  it  is  erroneous  to  enter  up  a  judgment  for  debt 
and  damages.     Ibid.,  387 

20.  Where  process  is  issued  to  a  foreign  county,  the  declaration  should  con- 
tain an  averment  of  the  facts  necessary  to  authorize  the  emanation  of 
the  writ  to  such  foreign  county.     An  averment  that  the  cause  of  action 
accrued  in  the  county  where  the  suit  was  brought,  without  averring  tint 
the  plaintiff  resided  there  at  the  time  of  the  commencement  of  th;;  suit. 
would  not  be  sulficient.     Key  v.  Collins,  403 

21.  Where  in  an  action  of  debt,  a  judgment  for  damages  is  rendered,  the 

682 


INDEX.  643 

judgment  will  be  reversed;  but  the  error  will  be  corrected  in  this  Court, 
and  such  a  judgment  given  as  the  Court  below  should  have  rendered. 
Guild  et  al.  v.  Johnson,  405 

22.  The  statute  regulating  the  amount  of  interest  which  a  borrower  of  the 
School  Fund  shall  be  subject  to  pay,  as  a  penalty  for  not  paying  the  prin- 
cipal and  interest  punctually,  when  due,  does  not  authorize  a  judgmont 
for  interest  infuturo,  and  it  can  not  be  rendered  at  common  law.     Pern-- 
sons v.  Hamilton,  415 

23.  Where,  upon  the  reversal  in  part,  of  the  judgment  of  the  Court  below, 
final  judgment  can  be  rendered  in  this  Court,  the  cause  will  not  be  re- 
manded.    Ibid.,  415 

24.  Where  the  bill  of  exceptions  enables  the  Court  to  ascertain  the  sum  that 
would  have  been  recovered,  if  instructions  asked  for  had  been  given,  it 
is  unnecessary  to  send  the  case  back  for  a  new  trial;  judgment  will  be 
rendered  for  that  amount  in  the  Supreme  Court.     Pearsons  et  al.   v. 
Bailey,  _  507 

25.  In  an  action  by  the  old  State  Bank  of  Illinois,  upon  a  promissory  note 
given    in  satisfaction    of  two  judgments  recovered  upon  promissory 
notes  executed  to  said  bank  in  consideration  of  bills  of  said  bank  which 
had  been  declared  by  the  Supreme  Court,  to  be  bills  of  credit  emitted  by 
the  State,  in  contravention  of  the  Constitution  of  the  United  States,  the 
defendants  offered  to  show  the  consideration  of  the  judgments  in  bar  of 
the  action:  Held,  that  the  evidence  was  inadmissible,  and  that  the  valid- 
ity of  the  judgments  could  not  be  impeached  in  such  action.     Mitchell 
et  al.  v.  State  Bank  of  Illinois,  526 

26.  A  judgment  can  not  be  impeached  in  an  action  upon  a  note  given    in 
satisfaction  of  such  judgment.     A  judgment  implies  verity  in  itself. 
Ibid.,  526 

27.  A  constable  who  has  collected  an  execution  issued  upon  a  judgment  re- 
covered in  a  suit  by  attachment,  and  paid  the  money  over  upon  the  or- 
der of  the  plaintiff  in  the  attachment,  is  not  liable  to  an  action  b}'  the 
attachment  debtor — after  the  reversal  of  such  judgment  on  appeal — for 
the  money  so  collected  and  paid  over.     Nor  is  he  liable  to  a  garnishee  of 
whom  he  has  collected  money  on  such  execution.     Elliott  v.  Sneed. 

517 

28.  Where  a  constable  collected  money  upon  a  judgment  obtained  by  W. 
against  R.,  before  a  justice  of  the  peace,  and  paid  the  same  to  G.,  upon 
the  order  of  E.,  to  whom  the  judgment  was  assigned;  and  afterward  the 
judgment  was  reversed  on  appeal,  and  the  constable  paid  the  money 
back  which  he  had  collected  of  R. :  Held,  that  E.,  the  assignee  of  tho 
judgment,  was  not  liable  to  refund  the  money  to  the  constable;  W. 
alone  being  liable.     Ibid.,  517 

29.  Semble,  That  where  a  judgment  is  assigned,  execution  should  issue  in 
the  name  of  the  assignor.    The  assignment  does  not  change  the  form 
of  the  execution,  or  the  parties  to  it.     Ibid.,  _  517 

30.  Where  a  constable  collected  mon»y  on  an  execution  issued  upon  a  judg- 
ment which  was  afterward  reversed,  and  paid  the  same  over,  upon  the 
order  of  the  plaintiff;  and  after  the  reversal  of  the  judgment,  the  con- 
stable paid  back  the  money  to  the  defendant:    Held,  that  the  constable 
might  maintain  an  action  against  the  plaintiff,  for  money  paid  to  his 
use.     Ibid.,  517 

81.  Semble,  That  where  the  verdict  of  a  jury  is  for  a  greater  sum  than  the 
ad  damnum  laid  in  the  declaration,  the  plaintiff  may  remit  the  excess, 
and  take  judgment  for  the  sum  laid.     GiUet  et  al.  v.  Stone  et  al.,    539 

82.  Where  an  action  of  assumpsit  is  commenced  against  several,  only  one 
of  whom  pleads  to  the  action,  and  the  default  of  the  others  is  entered,  it 
is  erroneous  to  take  final  judgment  against  them  until   the  issue  as 
to  the  defendant  who  pleads,  is  disposed  of.     Eussell  et  al.  v.  Hogcin 
etal.,  552 

33.  In  an  action  ex  contractu  against  several  defendants,  the  judgment  is 
a  unit;  it  must  be  rendered  against  all  or  none.    The  cause  can  not  be 

683 


644  INDEX. 

continued  as  to  one  who  has  pleaded,  and  final  judgment  rendered 
aarainst  the  others.  Ibid.,  .  552 

34.  The  spring  term  of  the  Cook  Circuit  Court,  was  changed  from  March  to 
April,  by  an  act  of  the  2d  of  March,  and  the  judge  being  ignorant  of 
the  change,  held  the  Court  in  March.  Issue  was  joined  in  a  cause,  and 
the  same  by  agreement  of  parties  was  submitted  to  the  Court  for  trial. 
Judgment  was  rendered  for  the  plaintiffs:  Held,  that  the  proceedings 
were  coram  non  judice,  and  that  the  judgment  was  illegal  and  void. 
Goodsell  et  nl.  v.  Boynton  et  al.,  555 

85.  The  law  is  well  settled,  that  in  order  to  justify  courts  not  of  record  in 
taking  cognizance  of  a  cause,  their  jurisdiction  must  affirmatively  ap- 
pear. Trader  et  al.  v.  McKee,  558 

36.  In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice  of  the  peace  of 
another  State,  to  be  received  in  evidence  in  this  State,  it  must  be  shown 
that  by  the  laws  of  the  State  where  the  judgment  was  rendered,  the  jus- 
tice had  jurisdiction  over  the  subject-matter  upon  which  he  attempted 
to  adjudicate.    Ibid.,  558 

37.  A  transcript  of  a  judgment  ot  a  justice  of  the  peace  ot  Wayne  county, 
in  Indiana,  purporting  to  be  certified  by  his  successor  in  office,  and  the 
clerk  of  the  Circuit  Court  of  Wayne  county  certified  as  to  the  capacity 
of  said  successor  in  office,  and  the  judge  of  the  sixth  Judicial  Circuit  in 
Indiana,  certified  as  to  the  capacity  of  the  said  clerk:    Held,  that  in  the 
absence  of  proof  that  the  statute  of  Indiana  authorized  the  clerk  to  give 
such  certificate,  he  could  not  give  a  certificate  in  such  a  case,  that  would 
be  evidence  in  a  court  of  justice.     Ibid.,  558 

38.  The  Court  from  which  an  execution  issues,  after  the  satisfaction   of  a 
judgment,  should,  on  motion,  set  aside  the  execution  and  sale  under  it. 
Russell  v.  Hugunin  etal.,  562 

39.  Where  a  judgment  was  recovered  by  H.  against  R.  and  P.  on  a  note,  and 
H.  gave  an  order  to  B.  on  H.'s  attorneys,  for  the  proceeds  of  the  note 
when  collected,  and  P.  afterward  arranged  the  matter  by  depositing 
the  amount  of  the  judgment  with  B.,  and  P.  brought  a  memorandum  to 
that  effect  from  B.  to  one  of  H.'s  attorneys,  who  was  also  the  general 
attorney  of  B.,  and  P.  stated  to  the  attorney  that  he  did  not  wish  the 
judgment  satisfied,  but  wished  to  use  the  judgment  so  as  to  protect  him- 
self, as  the  judgment  was  a  lien  on  R.'s  real  estate,  to  which  the  attor- 
ney assented,  and  directed  execution  to  issue,  which  was  issued,  and  the 
property  of  R.  sold  under  it  by  the  sheriff,  who  received   his  instruc- 
tions from  P.,  who  purchased  the  property;  and  after  the  sale  the  sheriff 
paid  over  to  the  attorney  P.'s  check  on  B.  for  the  amount  of  the  judg- 
ment, and  the  attorney  receipted  the  execution,  and  paid  the  check  to 
B.,  which  was  credited  to  H.  on  the  books  of  B. :   Held,  that  the  judg- 
ment was  satisfied  by  the  arrangement  made  with  B.  before  the  sale,  it 
appearing  that  B.  so  understood  it;  and  it  being  proved  that  P.  had  de- 
clared that  he  had  paid  it,  and  represented  to  a  person  of  whom  he  ob- 
tained a  loan  of  money  on  mortgage,  that  the  judgment  was  satisfied. 
Held,  also,  that  it  was  competent  for  H.  or  P.  to  have  shown  that  the 
payment  to  B.  was  not  in  extinguishment  of  the  judgment.  Ibid.,  562 

40.  Interest  is  recoverable  upon  an  account  for  goods  sold,  from  the  time  the 
amount  is  ascertained  by  the  parties ;  and  when  a  demand  is  sued  before 
a  justice  of  the  peace,  and  appealed  to  the  Circuit  Court,  that  Court  may 
give  judgment  for  more  than  the  amount  claimed  before  the  justice,  if 
the  excess  accrued  by  way  of  interest.     Lwton  v.  GillinmetaL,     577 

41.  A  justice  of  the  peace  has  no  authority  to  render  a  judgment  against 
any  defendant  who  is  not  served  with  process,  although  one  of  the  de- 
fendants is  regularly  served.     Maxcy  v.  Padfield,  590 

See  ALIMONY  ;  COSTS  ;  DEMURRER  ;  RECOGNIZANCE. 
JUDGMENT  BY  CONFESSION. 

1.  A  lawyer  employed  to  defend  a  suit,  is  not  authorized  to  consent  to  the 
entry  of  a  ]udgment  against  his  client,  without  his  assent.    His  doing 
084 


INDEX.  645 

so  is  a  violation^  of  the  confidence  reposed  in  him,  and  if  done  with  a 
corrupt  intent,  involves  such  a  degree  of  moral  turpitude,  as  would  au- 
thorize the  Court  to  strike  his  name  from  .the  roll  ot  attorneys.  The 
People  v.  Lamborn,  123 

2.  One  partner  can  not  confess  a  judgment  in  the  name  of  his  co-partner. 

Sloo  v.  State  Bank  of  Illinois,  428 

3.  A  power  of  attorney  to  confess  a  judgment,  is  usually  under  seal ;  but  if 

it  be  made  without  a  seal,  still  one  partner  can  not  by  it  bind  his  co- 
partner. Ibid.,  428 

4.  Quere,  Whether  a  judgment  confessed  for  a  larger  amount  than  is  ac- 

tually due,  can  be  valid.     Ibid.,  428 

5.  Quere.  Whether  one  partner  can,   after  the  rendition  of  a  judgment 

against  both,  upon  a  power  of  attorney  to  confess  a  judgment,  executed 
by  one  only  in  the  name  of  the  firm,  without  the  knowledge  of  the 
other,  ratify  and  make  valid  such  judgment.  Ibid.,  428 

JURISDICTION. 

1.  Statute  penalties  are  in  the  nature  of  punishments  ;  and  no  inferior 

Court  or  jurisdiction  can  have  cognizance  of  any  penalty  recoverable 
under  a  penal  statute,  unless  jurisdiction  be  given  to  it  in  express  terms. 
Bowers  v.  Green,  42 

2.  The  Circuit  Courts  are  limited  in  their  jurisdiction,  to  the  several  coun- 

ties in  which  they  are  erected,  except  in  cases  where  such  jurisdiction  is 
expressly  extended.  In  order  to  give  a  Circuit  Court  jurisdiction, 
where  the  process  issues  to  a  different  county  from  that  in  which  the 
action  is  instituted,  there  should  be  a  special  averment  in  the  declara- 
tion of  one  of  the  causes  enumerated  in  the  act  of  1828.  Clark  v. 
Harkness,  56 

3.  The  facts  upon  which  the  jurisdiction  arises,  must  be  either  expressly  set 

forth,  or  in  such  a  manner  as  to  render  them  certain  by  legal  intend- 
ments.  Ibid.,  56 

4.  The  Supreme  Court  of  the  United  States  is  the  proper  and  constitutional 

forum  to  decide,  and  finally  to  determine  all  suits  where  is  drawn  in 
question  "  the  validity  of  a  statute  of,  or  an  authority  exercised  under 
any  State,  on  the  ground  of  its  being  repugnant  to  the  Constitution, 
treaties,  or  laws  of  the  United  States,  and  the  decision  is  in  favor  of 
such  validity."  Linn  v.  State  Bank  of  Illinois,  87 

5.  Where  the  Supreme  Court  of  the  United   States  has  decided  that  a  State 

law  violates  the  Constitution  of  the  United  States,  the  judges  of  the 
respective  States  have  no  right  to  overrule  or  impugn  such  decision. 
Ibid.,  .87 

6.  The  County  Commissioners'  Court,  has  no  jurisdiction  to  determine  civil 

causes  between  individuals  or  corporations.  Vermilion  County  v. 
Knight,  97 

7.  If  a  Court  has  no  jurisdiction  of  the  subject-matter  of  a  suit,  consent  of 

parties  can  never  give  it.     Leigh  v.  Mason  et  al.,  249 

8.  The  United  States  could  not  be  a  defendant  in  a  State  Court  to  any  ac- 

tion whatever,  such  Court  having  no  jurisdiction  over  her  ;  and  consent 
could  not  give  it.  And  although  it  is  certainlytrue  that  the  tenant,  in 
all  actions  of  ejectment,  may  defend  himself  by  showing  the  title  of  his 
landlord,  it  does  not  follow  that  the  party,  who  could  not  be  a  defend- 
ant for  want  of  jurisdiction  in  the  Court  over  him,  may  defend  himself 
in  such  case  in  the  name  of  va  person,  who,  upon  no  reasonable  supposi- 
tion, could  be  considered  as  standing  in  the  relation  of  a  tenant.  Mc- 
Connell  v.  Wilco.r,  344 

9.  The  criminal  jurisdiction  of  the  Municipal  Court  of  the  City  of  Chicago, 

is  confined  to  the  territorial  limits  of  said  city.     Bell  v.  The  People,  397 

10.  The  "  Act  supplemental  to  An  Act  to  Incorporate  the  City  of  Chicago,1''' 
has  no  application  to  criminal  proceedings.     Ibid.  ,  397 

11.  Whenever  a  decision  takes  place  in  any  of  the  Circuit  or  inferior  Courts 
of  record  in  this  State,  which  is  final,  and  of  which  a  record  can  be 

685 


646  INDEX. 

made,  and  which  decides  the  right  of  property,  or  personal  liberty, 
complete  jurisdiction  is  conferred  on  the  Supreme  Court  to  hear  and  de- 
trrmine  the  same.  Sloo  v.  State  Bank  of  Illinois,  428 

12.  Where  A,  B,  C  and  D  were  jointly  indicted  in  the  Edgar  Circuit  Court, 
and  A  alone  moved  for  and  obtained  a  change  of  venue  to  the  Clark 
Circuit  Court,  without  the  consent  of  the  others,  where  he  was  tried; 
and  after  his  trial,    the  indictment,  without  any  order  of  Court,  was 
returned  to  the  Edgar  Circuit  Court,  and  B,  C,  and  D,  called  upon  to 
plead  to  the  same:    Held,  that  the  proceedings  were  regular,  and  that 
the  indictment  as  to  B,  C,  and  D,  must  be  considered  as  remaining  un- 
der the  control  of  the  Edgar  Circuit  Court,  and  that  no.  trial  could  be 
had  elsewhere.     The  Circuit  Court  of  Clark  county  should  have  ordered 
the  original  indictment  to  be  returned  to  Edgar  county,  and  retained  a 
copy  thereof  upon  its  own  records.     Hunter  et  al.  v.  The  People,  453 

13.  The  averment  at  the  end  of  a  declaration  containing  several  counts,  in  a 
suit  where  process  was  sent  to  a  foreign  county,  that  the  cause  of  action 
accrued  in  the  county  where  the  suit  was  brought,  and  within  the  juris- 
diction of  the  Court,   and  that  the  plaintiffs  reside  in  said  county,  is 
sufficient  to  give  the  Court  jurisdiction.     Gillet  et  al,  v.  Stone  et  al., 

639 

14.  An  averment  in  a  declaration,  where  process  is  sent  to  a  foreign  county, 
that  the  cause  of  action  accrued  in  the  county  where  the  suit  was 
brought,  without  at  the  same  time  averring  that  the  plaintiffs  reside  in 
the  same  county,  is  not  sufficient  to  give  a  Circuit  Court  jurisdiction. 
Gillet  etaL  v.  Stone  et  al.,  547 

15.  In  order  to  authorize  the  Circuit  Court  to  issue  a  summons  to  another 
county,  it  must  appear  that  the  cause  of  action  accrued  in  the  county 
where  the  plaintiff  resides  and  where  suit  is  brought,  or  that  the  con- 
tract sued  on  was  made  specifically  payable  in  the  county  in  which  the 
action  is  commenced.     Evans  v.  Crosier,  548 

16.  The  spring  term  of  the  Cook  Circuit  Court  was  changed  from  March  to 

April  by  an  act  of  the  2d  of  March,  and  the  judge  being  ignorant  of  the 
change,  held  the  Court  in  March.  Issue  was  joined  in  a  cause,  and  the 
same  by  agreement  of  parties  was  submitted  to  the  Court  for  trial. 
Judgment  was  rendered^ for  the  plaintiffs:  Held,  that  the  proceedings 
were  coramnonjudice,  and  that  the  judgment  was  illegal  and  void. 
Goodsell  etal.  v.  Boynton  etaL,  555 

17.  When  the  process  by  which  a  court  obtains  jurisdiction  of  a  cause  is 
irregular,  if  no  objection  is  made,  the  irregularity  is  waived.    Pearce 
et  al.  v.  Swan ,  266 

18.  If  an  appeal  be  irregularly  taken  to  the  Circuit  Court,  from  the  verdict 
of  a  jury  on  the  trial  of  the  right  of  property  before  a  justice,  etc.,  and 
the  appellee  appears  in  the  Circuit  Court,  he  waives  all  objections  to  the 
irregularity  of  the  appeal.    Ibid.,  266 

19.  Semble,  That  where  a  justice  of  the  peace,  or  other  inferior  officer,  acts 
in  a  case  where  he  is  not  authorized  to  act,  the  proceedings  are  not  only 
irregular,  but  void.     Gordon  v.  Knapp  et  al.,  488 

20.  The  law  is  well  settled,  that  in  order  to  justify  courts  not  of  record  in 
taking  cognizance  of  a  cause,  their  jurisdiction  must  affirmatively  ap- 
pear.    Trader  et  al.  v.  McKee,  558 

In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice  of  the  peace  of 
another  State,  to  be  received  in  evidence  in  this  State,  it  must  be  shown 
that  by  the  laws  of  the  State  where  the  judgment  was  rendered,  the 
justice  had  jurisdiction  over  the  subject-matter  upon  which  he  attempted 
to  adjudicate.  Ibid.,  558 

See  ADMINISTRATOR,  9;  APPEAL,  3,  5;  CRIMINAL  LAW;  GRAND  JTJBT; 
JUSTICES  OP  THE  PEACE;  PLEADING;  PROCESS. 

Of  the  Supreme  Court. 

21.  The  Supreme  Court  has  no  original  jurisdiction  to  authorize  the  allow - 

686 


INDEX.  647 

ance  of  writs  of  Habeas  Corpus.  It  has  no  authority  except  as  an 
Appellate  Court,  in  the  review  of  legal  proceedings,  to  allow  writs  of 
Habeas  Corpus.  But  a  party  can  apply  for  such  writ  to  one  of  the 
judges  of  the  Supreme  Court,  or  to  one  of  the  judges  of  the  Circuit 
Courts,  and  obtain  the  writ.  The  People  v.  Taylor,  202 

22.  The  State  can  not  prosecute  a  writ  of  error  in  a  criminal  case.     The 
People  v.  Royal,  557 

23.  A  joinder  in  error  will  not  give  the  Supreme  Court  jurisdiction  in  a 
case  where  the  Constitution  has  not  conferred  it.     Ibid.,  557 

24.  The  provision  in  Article  8,  §  11,  of  the  Constitution  of  the  State  of 
Illinois,  "That  no  person  shall  for  the  same  offense  be  twice  put  in 
jeopardy  of  his  life  or  limb,"  prohibits  the  State  from  bringing  a  writ 
of  error  where  a  person  accused  of  a  crime  is  acquitted  in  the  Court 
below.    Ibid.,  557 

See  No.  11,  ante. 

JURY  AND  JUKORS. 

1.  The  fact  that  the  names  of    two  petit  jurors  are  the  same  as  those  of 

two  grand  jurors,  does  not  show  that  they  are  the  same  persons.  Wick- 
ersham  v.  The  People,  128 

2.  Objections  to  jurors,  if  known,  should  be  made  before 'trial.     Ibid.,      128 

3.  An  alien  is  not  qualified  to  serve  as  a  juror  in  any  case.     Guykowski  v. 

The  People,  476 

4.  The  declaration  that  certain  qualifications  are  necessary  to  be  possessed  by 

the  individual,  to  constitute  him  a  juror,  necessarily  disqualify  the  per- 
son who  does  not  possess  such  qualifications.  Ibid..,  476 

5.  Semble,  That  the  affidavit  of  a  juror  in  support  of  the  verdict,  on  a  point 

entirely  disconnected  with  his  acts  or  the  motives  for  his  conduct,  may 
be  admitted  on  a  motion  for  a  new  trial.  Ibid.,  476 

6.  On  the  trial  of  a  suit  for  a  crim.  con.  between  the  defendant  and  the  wife 

of  the  plaintiff,  a  juror  was  proposed,  who  being  examined,  stated  that 
he  had  heard  the  testimony  against  the  wife  of  the  plaintiff,  wTio  was 
indicted  for  adultery  with  the  defendant,  and  from  that  testimony  he 
had  formed  and  expressed  an  opinion,  but  had  not  formed  any  opinion 
in  this  case,  not  knowing  that  there  was  a  civil  suit  then  :  Held,  that 
he  was  a  competent  juror,  it  not  appearing  that  the  crime  for  which  the 
wife  was  indicted  was  committed  oef ore  or  after  the  commencement  of 
the  suit  for  crim.  con.  King  v.  Dale,  513 

7.  It  is  a  well  settled  rule  of  law,  that  in  trials  by  jury,  the  weight  of  testi- 

mony is  a  question  to  be  decided  by  the  jury  exclusively.  The  decision, 
consequently,  can  not  be  assigned  for  error.  Johnson  v.  Moulton,  532 

8.  Semble,  That  on  an  application  to  a  Circuit  Court  to  set  aside  a  verdict 

of  a  jury  because  it  is  against  the  weight  of  testimony,  the  case  must  be 
a  flagrant  one  to  justify  the  Court  in  disturbing  the  verdict.  Ibid.,  532 

See  CRIMINAL  LAW,  4,  9, 10,  11;  GRAND  JURY;  PRACTICE,  44. 

JUSTICES  OF  THE  PEACE. 
Jurisdiction. 

1.  A  justice  of  the  peace  has  no  jurisdiction  where  the  original  amount  of 

the  demand  exceeds  one  hundred  dollars,  though  it  may  have  been  re- 
duced below  that  sum  by  credits.  .  Simpson. v.  Rowlings,  28 

2.  Justices  of  the  peace  have  no  jurisdiction  in  penal  actions,  except  in  cases 

where  such  jurisdiction  is  expressly  conferred.     Bower 8  v.  Green,       42 

3.  In  order  to  bar  a  subsequent  action  before  a  justice  of  the  peace,  on  the 

ground  that  a  prior  suit  between  the  same  parties  lias  been  determined 
by  a  justice,  it  must  be  shown  that  the  demands  in  both  suits  were  of 
such  a  nature  that  they  might  be  consolidated  into  one  action,  and  that 
the  first  suit  was  tried.  Carson  v.  Clark,  113 

4.  A  justice  of  the  peace  has  no  jurisdiction  of  a  demand  exceeding  one 

687 


643  INDEX. 

hundred  dollars,  but  reduced  below  that  sum  by  unfair  or  feigned  cred- 
its. Sands  v.  Delap,  168 

5.  Nor  has  a  justice  of  tne  peace  under  the  statute  of  1827,  jurisdiction  in 

any  case  where  he  would  inecessarily  have  to  investigate  an  account  ex- 
ceeding one  hundred  dollars.  Ibid.,  168 

6.  A  justice's  court  is  one  of  limited  jurisdiction.     The  statute  is  the  charter 

of  its  authority;  and  whenever  it  assumes  jurisdiction  in  a  case  not  con- 
ferred by  the  statute,  its  acts  are  null  and  void,  and  the  officer  obeying 
its  process  in  such  a  case,  makes  himself  liable:  Robinson  v.  Har- 
lan,  237 

7.  A  justice  of  the  pence  has  no  jurisdiction  of  a  suit  for  a  demand  exceed- 

ing twenty  dollars,  in  which  an  administrator  is  a  party,  except  for 
debts  due  for  property  purchased  at  an  administrator's  sale.  Leigh  v. 
Mason  ef  al.,  249 

8.  A  justice  of  the  peace  has  not  jurisdiction  of  an  action  by  attachment,  for 

a  demand  exceeding  !$30.     Hull  v.  Blaisdell  ef  al.,  832 

9.  The  justice  of  the  peace  who  issues,  and  the  constable  who  executes  process 

in  a  case  where  the  justice  has  not  jurisdiction,  are  both  liable  as  tres- 
passers. Ibid.,  332 

10.  The  law  is  well  settled,  that  where  there  is  a  written  contract  to  perform 
a  particular  piece  of  work,  and  the  workman  performs  a  part  of  the 
work,  and  is  prevented  from  finishing  it  by  the  other  party,  that  he  may 
treat  the  contract  as  rescinded,  and  recover  the  value  of  his  labor  in  an 
action  of  assumpsit.     Buffs  v.  Huntley,  410 

A  justice  of  the  peace  has  jurisdiction  in  such  case.     Ibid.,  410 

11.  The  law  is  well  settled,  that  in  order  to  justify  courts  not  of  record  in 
taking  cognizance  of  a  cause,  their  jurisdiction  must  affirmatively  ap- 
pear.    Trader  et  al.  v.  McKee,  558 

12.  In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice  of  the  peace 
of  another  State,  to  be  received  in  evidence  in  this  State,  it  must  be 
shown  that  by  the  laws  of  the  State  where  the  judgment  was  rendered, 
the  justice  had  jurisdiction  over  the  subject-matter  upon  which  he 
attempted  to  adjudicate.    Ibid.,  558 

13.  A  justice  of  the  peace  has  jurisdiction  of  a  suit  upon  a  note  for  $100, 
where  the  plaintiff  does  not  claim  interest.     Simpson  v.  Updegroff  ef 
a  I.,  594 

14.  A  justice  of  the  peace  has  jurisdiction  in  a  case  where  the  original  in- 
debtedness exceeds  one  hundred  dollars,  but  has  been  reduced  below 
that  sum  by  fair  credits,  although  the  account  may  hot  have  been  liqui- 
dated between  the  parties.     Hugunin  v.  Nicholson,  575 

15.  The  Court  will  presume  that  a  credit  allowed  on  an  account  by  the 
plaintiff,  in  a  suit  before  a  justice  of  the  peace,  is  a  fair  one,  until  the 
contrary  is  shown.    Ibid.,  575 

General  Pou-ers,  etc. 

16.  Acts  of  official  misconduct  by  justices  of  the  peace,  done  with  corrupt 
motives,  are  indictable   offenses.     An  indictment  charging  that  the 
defendant,  a  justice  of  the  peace,  took  up  certain  estray  animals,  speci- 
fying the  number  and  kind,  and  corruptly  caused  the  same  to  be  ap- 
praised  before  himself  as  such  justice,  is  substantially  good.     Wick- 
ersham  v.  The  People,  128 

17.  Where  a  suit  is  brought  before  a  justice  of  the  peace,  which  terminates 
in  a  final  judgment  on  the  merits,  there  both  parties  shall  be  precluded 
from  further  litigation  in  relation  to  all  matters  that  might  have  been 
decided  in  that  case.     McKinney  v.  Finch,  152 

18.  Where  two  distinct  suits  are  brought  before  the  same  justice,  on  the 
same  day,  upon  two  demands  which  might  be  consolidated  into  one 
suit,  and  wnich  when  thus  consolidated,  would  not  exceed  $100,  and 
one  suit  is  dismissed,  and  judgment  is  rendered  in  the  other,  the  pro- 
ceedings are  regular.    Ibid.,  152 

688 


INDEX.  649 

19.  The  dismissal  of  a  suit  by  a  justice  of  the  peace,  is  in  effect  a  non-suit, 
and  does  not  bar  a  subsequent  suit  for  the  same  demand,  or  for  a  diffrr- 
ent  cause  of  action.     Ibid.,  152 

20.  A  non-resident  plaintiff  can  not  institute  a  suit  before  a  justice  of  the 
peace  until  he  has  given  a  bond  for  costs,  although  he  sue  for  the  use 
of  a  resident.    The  statute  in  relation  to  costs  in  the  Circuit  Court  in 
like  cases,  is  different.     Seu-ard  v.  Wilson,  192 

21.  An  assignor  of  a  note,  is  not  the  adverse  party  contemplated  by  the  stat- 
ute permitting  a  party  to  prove  his  demand  by  the  adverse  party,  etc.,  in 
a  trial  before  a  justice  of  the  peace.    Arnold  v.  Johnson,  193 

22.  It  can  not  ba  denied  that  a  constable  is  liable  where  he  has  willfully  n^g- 
lected  or  refused  to  execute  lawful  process  issued  upon  a  judgment  re  i- 
dered  by  a  justice  of  the  peace,  in  a  case  where  he  had  jurisdiction  of 
the  subject-matter  litigated ;  but  to  enforce  this  liability,  it  is  not  only 
necessary  for  the_declaration  to  allege  generally  that  the  magistrate  had 
jurisdiction,  but  it  should  set  out  specifically  the  kind  of  action,  and  ex- 
tent of  the  plaintiff's  claim,  in  order  to  show  to  the  Court  that  the  justice 
had  jurisdiction.     Robinson  v.  Harlan,  237 

23.  The  obvious  intention  of  all  the  legislation  with  respect  to  proceedings 
before  justices  of  the  peace,  is  to  simplify  the  proceedings,  and  dispense 
with  all  form  and  technicality  consistent  with  a  fair  trial  of  causes  upon 
their  merits.     Dedtnan  v.  Barber,  254 

24.  The  notice  required  by  §5  of  the  "  Act  to  amend  an  act  concerning  Jus- 
tices of  the  Peace  and  Con'stables,"  in  order  to  enable  a  party  to  prove 
his  demand,  discount  or  set-off  by  the  testimony  of  the  adverse  party,  or 
in  case  of  his  absence  or  refusal  to  be  sworn,  by  his  own  oath,  must 
be  given  to  the  adverse  party  personally.     A  notice  to  his  attorney.,  is 
not  sufficient.     Carver  v.  Crocker,  265 

.25.  A  summons  from  a  justice  of  the  peace  to  the  defendant,  to  answer  "  fora 
violation  of  an  ordinance  of  said  town  relative  to.  nuisances, ' '  is  informal 
and  insufficient.  Israel  et  al.  v.  Touxt  of  Jacksonville,  290 

26.  The  appointment  of  a  constable  pro  tern,  by  a  justice  of  the  peace,  to 
execute   process,    under  §  51  of  the  "  Act  concerning  Justices  of  the 
Peace  and  Constables,"  must  be  made  by  indorsement  upon  the  back 
of  the  process.     An  appointment  upon  a  separate  piece  of  paper,  is  not  a 
compliance  with  the  act.     Gordon  v.  Knapp  et  al.,  488 

27.  The  statute  specifies  but  two  cases  in  which  a  justice  of  the  peace  is  au- 
thorized to  appoint  a  constable  pro  tern.    The  one  is  to  execute  criminal 
process,  where  the  accused  is  likely  to  escape;  and  the  other  is  to  execute 
civil  process,  where  goods  and  chattels  are  about  to  be  removed  before 
an  application  can  be  made  to  a  qualified  constable.     In  the  latter  case, 
as  a  pre-requisite  to  the  power  of  appointment,  it  must  be  shown  that 
goods  and  chattels'  are  about  to  be  removed.     Ibid.,  488 

28.  A  justice  of  the  peace  can  not  appoint  a  constable   pro  tern,  to  serve  a 
summons  or  other  personal  notice,  in  a  civil  suit.     The  statute  refers  to 
an  execution  or  attachment.    Ibid.,  488 

29.  Semble,  That  where  a  justice  of  the  peace,  or  other  inferior  officer,  acts 
in  a  case  where  he  is  not  authorized  to  act,  the  proceedings  are  not  only 
irregular,  but  void.     Ibid.,  488 

30.  In  proceedings  under  the  "  Act  regulating  Inclosures"  it  is  necessary 
that  the  justices  of  the  peace  before  whom  proceedings  are  had,  should 
notify  the  defendant  of  the  same.     Hollidaij  v.  Swailen,  515 

31.  Where  the  plaintiff  brought  an  action  before  a  justice  of  the  peace,  upon 
a  bond  made  by  the  defendant  while  an  infant,  and  upon   the  trial  the 
defendant  pleaded  and  proved  his  infancy  in  bar;   and  thereupon  the 
plaintiff  made   oath  that  he  knew  of  no  witness  bywlum  he  could 
prove  the  defendant's  agreement  since  he  became  of  age,  lo  pay  him 
$18  in  full  of  the  bond,  except  by  his  qAvn  oath,   or  that  of  the  defend- 
ant, and  prayed  that  the  defendant  might  be  sworn,  which  the  Court 
refused  to  allow:    Held,  that  the  Court  "decided  correctly,  because  the 
proof,  if  admitted,   would  have   proved  a  different  cause  of  action 

VOL.  1-44  689 


650  INDEX. 

from  that  upon  which  the  suit  was  brought.     Bliss  et  al,  v.  Ferryman, 

484 

32.  A  transcript  of  a  judgment  of  a  justice  of  the  peace  of  Wayne  county, 
in  Indiana,  purported  to  be  certified  by  his  successor  in  office,  and  the 
clerk  of  the  Circuit  Court  of  Wayne  county  certified  as  to  the  capacity 
of  said  successor  in  office,  and  the  judge  of  the  sixth  Judicial  Circuit  in 
Indiana,  certified  as  to  the  capacity  of  the  said  clerk:    Held,  that  in 
the  absence  of,  proof  that  the  statute  of  Indiana  authorized  the  clerk 
to  give  such  certificate,  he  could  not  give  a  certificate  in  such  a  case, 
that  would  be  evidence  in  a  court  of  justice.     Trader  et  al.  v.  McKec, 

558 

33.  A  justice  of  the  peace  has  no  authority  to  render  a    judgment   against 
any  defendant  who  is  not  served  with  process,  although  one  of  the   de- 
fendants is  regularly  served.     Maxcy  v.  Padfield,  590 

34.  The  Circuit  Court  can  not  amend  the  papers  on  appeal  from  the  judg- 
ment of  a  justice  of  the  peace,  by  striking  out  the  name  of  one  ot  the 
defendants  in  the  Court  below.     Ibid.,  590 

See  APPEAL;  ATTACHMENT;   CONSTABLE;  CERTIORARI. 

LAND  AND  LAND  SALES. 
See  EJECTMENT;  IMPROVEMENTS;  PUBLIC  LANDS;  TRESPASS. 

LANDLORD  AND  TENANT. 

1.  A  landlord  who  has  distrained  upon  the  goods  of  his  tenant,  has  a  suffi- 

cient interest  in  them  to  enable  him  to  be  the  claimant  of  the  same  on  a 
trial  of  the  right  of  property,  if  they  are  subsequently  taken  in  execution. 
Grimsley  et  al.  v.  Klein,  343 

2.  Serrible,  That  any  person  having  an  interest  in  goods  and  chattels,  may 

be  a  claimant  of  the  same,  and  have  a  trial  of  the  right  of  property  be- 
tween the  creditor  in  an  execution  levied  on  the  same,  and  himself.  Ibid., 

343 

3.  The  statute  of  the  State  of  Illinois,  in  relation  to  forcible  entry  and  de- 

tainer, is  more  comprehensive  than  the  English  act.  It  authorizes  the 
action  to  be  maintained  against  a  lessee  who  holds  over,  after  the  de- 
termination of  his  lease,  whether  he  holds  by  force  or  not,  provided  the 
lessor  has  given  him  notice  to  quit.  Mason  v.  Finch,  495 

See  USE  AND  OCCUPATION. 

LAND  OFFICE. 
See  EVIDENCE,  4,  12, 14,  36,  41. 

LARCENY. 
See  CRIMINAL  LAW,  15. 

LAW. 
See  OFFICE  AND  OFFICEB. 

LEGISLATURE. 
See  OFFICE  AND  OFFICER. 

LEVY. 

See  EVIDENCE,  8,  9. 

LEX  LOCI. 

1.  The  law  of  the  State  where  the  land  is  situated,  is  to  govern  both  as  to 
the  form  of  the  remedy,  and  the  evidence  of  title.  McConnell  v.  Wil- 
cor,  344 

090 


INDEX.  651 

2.  No  principle  is  better  settled  than  that  the  laws  of  the  country  where  the 

contract  is  made  shall  govern  its  construction  and  determine  its  va- 
lidity. Stacy  v.  Baker,  417 

3.  Where  a  note  was  made  in  Kentucky,  the  laws  of  which  State  allow  the 

same  defense  to  be  made  against  a  note  in  the  hands  of  an  assignee, 
whether  assigned  before  or  after  it  becomes  due,  that  may  be  made 
against  the  original  holder  or  payee,  and  suit  was  brought  upon  said 
note  in  Illinois  against  the  administrator  of  the  maker,  who  had  removed 
to  this  State:  Held,  that  the  laws  of  Kentucky  at  the  time  of  the  making 
and  assignment  of  the  note,  should  be  the  rule  of  decision,  and  the  de- 
fendant might  avail  himself  of  any  defense  that  he  could  have  availed 
himself  of ,  if  the  suit  had  been  prosecuted  in  Kentucky.  Ibid.,  417 

4.  The  existing  laws  of  a  State,  at  the  time  of  the  making  and  assignment 

of  a  promissory  note,  form  a  portion  of  the  contract,  and  the  liability  of 
the  maker  should  be  determined  under  them.  Ibid.,  417 

See  EJECTMENT. 

LIENS. 

1.  A  mortgage  creditor  has  a  specific  lien  on  the  mortgaged  premises,  •which 

is  not  affected  by  the  solvency  or  insolvency  of  the  intestate's  estate. 
Menard  v.  Marks,  25 

2.  A  judgment  of  a  Circuit  Court  creates  no  lien  upon  lands  beyond  the  limits 

of  the  county  in  which  such  judgment  is  rendered.  Bustard  et  al.  v. 
Morrison  et  al.,  235 

3.  If  by  lapse  of  time,  or  his  own  negligence,  a  party  loses  his  lien,  a  Court 

of  Chancery  can  not  aid  him  by  extending  the  hen  beyond  the  period 
limited  by  law.  Ibid.,  235 

4.  The  statute  makes  judgments  of  the  Circuit  Court  alien  upon  all  the  lands 

of  the  defendant  within  its  jurisdiction.  No  sale  or  transfer  of  these 
lands  after  judgment,  will  exempt  them  from  the  operation  of  an  exe- 
cution at  any  time  within  seven  years.  Ibid.,  235 

LIMITATION  OF  ACTIONS. 
See  STATUTE  OP  LIMITATIONS. 

MANDAMUS. 

1.  Where  the  Circuit  Court  granted  a  continuance  because  an  account  was 

not  filed  with  a  declaration  upon  a  promissory  note— which  also  con- 
tained the  usual  common  counts — although  the  plaintiff  offered  to  file  a 
stipulation  that  he  claimed  to  recover  only  upon  the  note  which  was 
filed  with  the  declaration  ten  days  before  the  session  of  the  Court — 
unless  the  plaintiff  would  strike  the  common  counts  out  of  his  decla- 
ration, the  Supreme  Court  granted  a  peremptory  writ  of  mandamus  to 
the  judge  of  the  Circuit  Court,  commanding  that  Court  to  proceed  with 
the  cause  without  requiring  the  account  to  be  filed.  The  People  v. 
Pearson,  458 

2.  Semble,  That  where  a  notice  of  an  application  for  a  writ  of  mandamus 

to  a  judge  of  the  Circuit  Court,  is  served  upon  the  opposite  party  in  in- 
terest, and  the  judge  of  the  Court  and  the  law  is  plain,  the  Court  will 
grant  a  peremptory  writ  in  the  first  instance.  Ibid.,  458 

3.  Where  the  Circuit  Court  granted  a  continuance  because  an  account  was 

not  filed  with  the  declaration  on  a  bill  of  exchange,  which  contained  a 
special  count  and  the  common  money  counts,  although  the  declaration 
and  a  copy  of  the  bill  declared  on,  were  filed  more  than  ten  days  pre- 
vious to  the  session  of  the  Court,  the  Supreme  Court  granted  a  writ  of 
mandamus  to  the  judge  of  the  Circuit  Court,  directing  him  to  rescind 
the  order  for  a  continuance,  and  proceed  with  the  cause  upon  the  merits 
without  requiring  the  plaintiff  to  file  an  account  under  the  money 
counts.  The  People  v.  'Pearson,  473 

691 


652  INDEX. 

4.  It  is  competent  for  the  legislature  to  repeal  a  law  creating  an  office,  be- 
fore the  expiration  of  the  term  of  office  of  the  incumbent;  and  after 
such  repeal  the  officer  is  entitled  to  no  further  compensat'on,  though  his 
term  of  office,  according  to  the  provisions  of  the  law  under  which  he 
was  appointed,  has  not  expired.  The  People  v.  The  Auditor,  537 

MALICIOUS  PROSECUTION. 

1.  The  doctrine  is  -well  settled  that  an  action  for  malicious  prosecution  can 
not  be  brought  before  the  first  suit  has  been  legally  determined,  and  it 
must  be  averred  that  the  former  suit  terminated  in  the  present  plaint- 
iff's favor.  A  legal  conclusion  of  the  suit  mast  be  shown.  If  the  suit 
be  proved  not  to  have  been  determined  iu  the  manner  alleged,  it  is  a 
good  ground  of  non-suit.  Feazle  v.  Simpson  et  al.,  30 

B.  •  In  actions  for  malicious  prosecutions,  it  is  a  rule  of  law  that  there  must 
be  both  malice  and  a  want  of  probable  cause  to  justify  a  recovery. 
Leidig  v.  Rawson,  272 

3.  In  an  action  for  malicious  prosecution,  the  defendant  may  give  in  evi- 

dence any  facts  which  show  that  he  had  probable  cause  for  prosecuting, 
and  that  he  acted  in  good  faith  on  the  grojjnd  of  suspicion.  Ibid. ,  272 

4.  The  gist  of  the  action  for  malicious  prosecution,  is,   that  the  prosecutor 

acted  maliciously,  and  without  probable  cause.  If  there  is  no  malice, 
or  if  there  is  probable  cause,  the  action  will  not  lie.  Ibid.,  272 

5.  In  an  action  for  the  malicious  prosecution  of  the  plaintiff  on  a  charge  of 

perjury  in  making  a  complaint,  before  a  justice  of  the  peace,  that  the 
defendant  had  committed  a  larceny,  the  defendant  asked  the  following 
question  of  a  witness,  who  was  his  counsel  before  the  justice:  "  Did  the 
defendant  understand,  on  the  trial  before  the  justice,  that  he  was  an- 
swering to  a  prosecution  for  stealing  ?"  Held,  that  the  question  was 
improper.  Ibid.,  272 

MARRIAGE  LICENSE. 
See  EVIDENCE,  55. 

MASTER  AND  SERVANT. 
See  NEGROES  AND  MULATTOES. 

MILITIA. 

1.  No  appeal  or  writ  of  certiorari  can  be  taken  from  the  judgment  of  a  jus- 
tice of  the  peace,  in  a  suit  brought  to  recover  an  assessment  upon  a 
member  of  a  class,  made  under  §45  of  the  Militia  Law.  Yunt  v.  Brown, 

264 

MILLS. 

1.  In  an  action  by  C.  against  L.,  for  erecting  a  dam  across  a  navigable 
stream,  which  obstructed  its  navigation,  and  by  means  of  which  C.'s 
boat  and  boat  load  of  corn  were  lost,  the  defendant  asked  a  witness 
"  Whether  there  was  not  another  mill-dam  across  said  river  below  the 
defendant's  mill-dam,  erected  in  violation  of  law,  which  was  higher  than 
the  defendant's  mill-dam;  and  whether  said  lower  dam  would  not  have 
prevented  plaintiff  from  proceeding  to  the  lower  markets  of  Natchez  or 
New  Orleans,  as  it  was  late  in  the  season,  and  no  other  tide  might  take 
place  in  the  river  during  that  season,  even  if  the  plaintiff  could  have 
gone  over  the  defendant's  mill-dam:"  Held,  that  the  question  was 
illegal  and  improper.  Clark  v.  Lake,  229 

See  OBSTRUCTION. 

MINORS. 
See  INFANTS. 

692 


INDEX.  653 

MISCHIEVOUS  ANIMALS. 

1 .  The  owner  of  a  dog  of  a  mischievous  and  ferocious  disposition,  if  he  per- 

mit it  to  go  at  large,  knowing  that  it  has  done  mischief  in  the  destruc- 
tion of  one  kind  of  animals,  will  be  liable  for  the  destruction  of  other 
animals  bv  the  same  dog,  though  of  a  different  species.  Pickering  v. 
Orange,  "  338 

2.  The  law  is  well  settled,  that  where  a  person  negligently  keeps  a  dog  or 

other  animal  which  is  known  to  him  to  be  of  a  savage  and  ferocious  dis- 
position, he  is  accountable  for  all  the  injury  it  may  do  to  other  animals. 
Pickering  v.  Orange,  492 

MISTAKE. 

1.  It  would  be  clearly  unjust  to  permit  a  party  to  assign  his  own  mistakes 

as  error.     Clem-son  et  al.  v.  State  Bank  of  Illinois,  45 

2.  A  mistake  in  making  up  the  record  of  a  cause  may  be  corrected  at  a  term 

subsequent  to  that  at  which  the  same  was  disposed  of.  Mitcheltree  v. 
Sparks,  122 

3.  The  name,  "  Nathan  "  was  erased  and  "  Matthew  "  inserted,  in  a  record 

at  a  subsequent  term.     Ibid.,  122 

MONEY  HAD  AND  RECEIVED. 
See  ACTION. 

MORTGAGE. 

1.  A  mortgage  creditor  has  a  specific  lien  on  the  mortgaged  premises,  which 

is  not  affected  by  the  solvency  or  insolvency  of  the  intestate's  estate. 
Menard  v.  Marks,  25 

2.  A  mortgage  of  lands  is  not  a  note,  bond,  bill,  or  other  instrument  in 

writing  within  the  meaning  of  the  act  in  relation  to  promissory  notes; 
and  a  want  of  consideration,  or  a  failure  of  consideration  can  not  be 
pleaded  to  a  scire  facias  to  foreclose  a  mortgage.  Hall  et  al,  v.  Byrne 
etal.,  140 

3.  Mortgages,  marriage  settlements  and  limitations  over  of  chattels  are 

valid  against  all  persons  without  delivery  of  possession,  provided  the 
transfer  be  bonafide,  and  the  possession  remain  with  the  person  shown 
to  be  entitled  to  it  by  the  stipulations  of  the  deed.  Thornton  v.  Daven- 
port et  al.,  296 

4.  The  fact  that  a  mortgage  was  executed  upon  the  same  day  that  a  judg- 

ment was  obtained  against  the  mortgagor,  unaccompanied  by  other  cir- 
cumstances calculated  to  cast  suspicion  upon  the  transaction,  is  not  in 
itself  sufficient  to  attach  to  it  the  imputation  of  fraud.  Ibid.,  296 

See  FRAUDS;  SCIRE  FACIAS. 

MURDER. 
See  INDICTMENT,  3. 

NAVIGABLE  STREAM. 
See  MILLS;  OBSTRUCTION. 

NEGROES  AND  MULATTOS.?. 

1.  A  proviso  in  a  statute  is  intended  to  qualify  what  is  affirmed  in  the  body 

of  the  act,  section,  or  paragraph  preceding  it.  T*he  proviso  of  §  3, 
Article  6  of  the  Constitution  of  the  State  of  Illinois,  does  not  render  the 
persons  therein  named,  subject  to  servitude.  Boon  v.  Juliet,  258 

2.  The  children  of  negroes  and  mulattoes,  registered  under  the  laws  of  the 

Territories  of  Indiana  and  Illinois,  are  unquestionably  free.     Ibid., 

258 
693 


65±  INDEX. 

3.  The  act  of  1807,  of  the  Territory  of  Indiana,  in  relation  to  the  indentur- 

ing and  registering  of  negroes  and  ruulattoes,  is  clearly  in  violation  of 
the  Ordinance  of  1787,  and  therefore  void.  Choisser  \.Hargrave,  317 

4.  The  Constitution  of  this  State  confirms  only  those  indentures  of  negroes 

and  mulattoes,  that  were  made  in  conformity  to  the  act  of  1807,  of  the 
Territory  of  Indiana;  and  one  of  the  essential  requisites  to  the  validity 
of  an  indenture  under  that  act,  was,  that  it  be  made  and  entered  into 
within  thirty  days  from  the  time  the  negro  or  mulatto  was  brought  into 
the  Territory.  Ibid.,  317 

NEGOTIABLE  INSTRUMENTS. 
See  ASSIGNMENT;  PROMISSORY  NOTES. 

NEW  TRIAL. 

1.  Courts  will  reluctantly  interfere  to  set  aside  a  verdict  and  grant  a  new 

trial,  where  the  proceedings  have  been  regular.  Wickersham  v.  The 
People,'  128 

2.  An  application  to  set  aside  a  judgment  by  default,  or  to  grant  a  new 

trial,  is  an  application  addressed  to  the  discretion  of  the  Court,  and 
the  decision  of  the  Court  upon  such  application,  can  not  be  assigned  for 
error.  Harmisonv.  Clark  et  al.,  131 

3.  Since  the  statute  of   1837,  an  appeal  will  lie  from  the  decision  of  a  Cir- 

cuit Court  refusing  an  application  for  a  new  trial.     Smith  v.  Shultz, 

490 

4.  A  court  will  not  grant  a  new  trial,  when,  in  its  opinion,  substantial 

justice  has  been  done  between  the  parties,  though  the  law  arising  on 
the  evidence  would  have  justified  a  different  result;  nor  will  it  upon 
application  of  the  defendant,  afford  him  an  opportunity  of  introducing 
newly  discovered  testimony,  which  is  not  conclusive  in  its  character,  or 
is  merely  cumulative.  Ibid.,  490 

5.  It  is  a  well  settled  rule  of  law,  that  in  trials  by  jury,  the  weight  of  testi- 

mony is  a  question  to  be  decided  by  the  jury  exclusively.  The  decision, 
consequently,  can  not  be  assigned  for  error.  Johnsonv.  Moulton,  532 

6.  Semble,  That  on  an  application  to  a  Circuit  Court  to  set  aside  a  verdict 

of  a  jury  because  it  is  against  the  weight  of  testimony,  the  case  must  be 
a  flagrant  one  to  justify  the  Court  in  disturbing  the  verdict.  Ibid.,  532 

7.  The  exercise  of  the  power  to  grant  or  refuse  an  application  to  set  aside  a 

default  and  permit  the  defendant  to  plead,  as  also  the  granting  or 
refusing  of  a  motion  for  a  new  hearing,  is  a  matter  of  sound  legal  dis- 
cretion; and  the  Supreme  Court  cannot  interfere  with  the  exercise  of 
that  discretion  by  the  Circuit  Court.  Gillet  et  al.  v.  Stone  et  al.,  539 

8.  The  Circuit  Court  may  set  aside  a  defective  verdict,  and  award  a  venire 

de  npvo,  in  a  criminal  case,  where  the  facts  found  are  so  defective  that 
no  judgment  can  be  rendered  upon  such  verdict.  Lawrence  et  al.  v. 
The  People,  414 

9.  Semble,  That  the  Court  will  presume  that  an  affidavit  made  upon  a 

motion  for  a  new  trial,  and  referred  to  in  the  bill  of  exceptions  taken 
upon  the  overruling  of  the  motion,  is  true,  unless  the  same  is  disputed 
in  the  record.  Mulford  v.  Shepard,  583 

10.  Semble,  That  a  motion  for  a  new  trial  may  be  made  even  after  the 
entry  by  the  clerk  of  final  judgment,  if  it  be  made  at  the  term  of  the 
Court  at  which  the  first  trial  was  had.     Ibid.,  583 

See  CRIMINAL  LAW,  14;  DEFAULT. 

NON-RESIDENT. 
See  SECURITY  FOR  COSTS;  STATUTE  OF  LIMITATIONS,  2, 

NOTE. 
See  PROMISSORY  NOTES. 

694 


INDEX.  655 

NOTICE. 

1.  The  notice  required  by§  5  of  the  ''Act  to  amend  an  act  concerning  Justices 

of  the  Peace  and  Constables,"  in  order  to  enable  a  party  to  prove  his 
demand,  discount  or  set-off,  by  the  testimony  of  the  adverse  party,  or 
in  case  of  his  absence  or  refusal  to  be  sworn,  by  his  own  oath,  must  be 
given  to  the  adverse  party  personally.  A  notice  to  his  attorney  is  not 
sufficient.  Carver  y.  Crocker,  265 

2.  Surplusage  can  not  vitiate  a  notice.     Pearce  et  al.  v.  Swan,  266 

3.  In  proceedings  under  the  "  Act  regulating  Inclosures,"  it  is  necessary 

that  the  justices  of  the  peace  before  whom  proceedings  are  had,  should 
notify  the  defendant  of  the  same.  Holliday  v.  Swailes,  515 

4.  A  party  intending  to  move  to  quash  an  execution,  should  give  the  op- 

posite party  notice  of  his  intended  motion.  Where  an  execution  was 
quashed  without  such  notice,  the  Supreme  Court  reversed  the  decision, 
and  remanded  the  cause.  Dazey  v.  Orr  et  al.,  535 

See  CHANCERY,   9,  10;  MANDAMUS.   2;  PROMISSORY  NOTES,  34,  36,  38; 
EIGHT  OF  PROPERTY,  2;  VENUE,  2,  3. 

OBSTRUCTION. 

1.  The  law  is  well  settled,  that  every  person  who  erects  an  obstruction  across 
a  public  highway,  is  liable  for  all  the  injuries  that  result  from  it.  It  is 
consequently  no  excuse  that  another  obstruction  would  have  produced 
the  same  effect.  Clark  v.  Lake,  229 

OFFICE  AND  OFFICER. 

1 .  It  is  competent  for  the  legislature  to  repeal  a  law  creating  an  office,  be- 
fore the  expiration  of  the  term  of  office  of  the  incumbent;  and  after 
such  repeal,  the  officer  is  entitled  to  no  further  compensation,  though 
his  term  of  office,  according  to  the  provisions  of  the  law  under  which 
he  was  appointed,  has  not  expired.  The  People  v.  The  Auditor,  537 

See  SHERIFF;  CONSTABLE;  CLERK. 

ORDINANCE  OF  1787. 
See  PUBLIC  LANDS,  18. 

PARTIES  TO  ACTIONS. 

See  APPEAL,  18,  ATTACHMENTS.  1,  2;  PROMISSORY  NOTES,  8,  20,  21,  22,  27, 
28,  29;  SCIRE  FACIAS,  10, 11, 12. 

PATENT. 

1.  Where  two  patents  have  issued  for  the  same  lands  to  different  persons. 

at  different  times,  the  elder  patent  is  the  highest  evidence  of  title,  and 
so  long  as  it  remains  in  force,  is  conclusive  against  a  junior  patent. 
Brunerv.  Manlove  et  al.,  156 

2.  A  patent  can  not  be   impeached  by  parol,  in  an  action  of  ejectment. . 

Ibid.,  156 

3.  A  patent  is  not  the  title  itself,  but  the  evidence  thereof.    McConnell  v. 

Wilcox,  344 

PARTNERSHIP  AND  PARTNERS. 

1.  One  co-partner  or  co-purchaser  can  in  no  case  recover  in  an  action  for 

money  paid,  against  his  co-partner  or  co-purchaser,  until  the  money 
has  actually  been  paid;  nor  then  until  the  time  of  payment  has  arrived. 
Dedman  v.  Williams,  154 

2.  It  may  be  doubted  whether  an  agreement  between  two  or  more  individ- 

uals, to  do  a  particular  piece  of  labor,  for  which  each  is  to  receive  his 

695 


656  INDEX. 

aliquot  part  of  the  compensation  for  the  work,  constitutes  them  partners. 
Moreton  v.  Gtttcly,  211 

3.  One  partner  can  not  confess  a  judgment  in  the  name  of.  his  co-partner. 

Sloo  v.  State  Bank  of  Illinois,  4L8 

4.  A  power  of  attorney  to  confess  a  judgment,  is  usually  under  seal ;  but  if  it 

be  made  without  a  seal,  still  one  partner  can  not  by  it  bind  his  co-part- 
ner. Ibid.,  4'28 

5.  Qttere,  Whether  a  judgment  confessed  for  a  larger  amount  than  is  actual- 

ly due,  can  be  valid.     Ibid.,  428 

6.  Qitcre,  Whether  one  partner  am,  after  the  rendition  of  a  judgment  against 

both  upon  a  power  o''  attorney  to  confess  a  judgment,  executed  by  one 
only  in  the  name  of  the  firm,  without  the  knowledge  of  the  other, 
ratify  and  make  valid  such  judgment.  Ibid.,  428 

7.  In  an  action  against  the  makers,  upon  a  promissory  note  executed  in  a 

co-partnership  name,  one  of  the  defendants — the  general  issue  being 
pleaded — offered  to  read  in  evidence,  on  the  trial,  a  notice  of  the  disso- 
lution of  the  co-partnership,  published  in  the  Galena  Gazette,  a  public 
newspaper,  long  before  the  execution  of  the  note.  He  afterward 
offered  to  prove  by  a  witness  that  long  before  the  making  of  the  note 
in  question,  there  was  no  co-partnership  existing  between  the  defend- 
ants, and  that  the  plaintiffs  had  notice  thereof  before,  and  at  the  time 
of  the  making  of  the  promissory  note  declared  on,  which  the  Court 
rejected:  Held  that  the  evidence  was  admissible.  Whitesides  v.  Lee 
et  aL,  548 

8.  Quere,  Whether  this  would  be  the  decision,  if  the  suit  had  been  com- 

menced and  the  plea  filed  subsequently  to  the  passage  of  the  act  of 
March  2,  1839,  "regulating  evidence  in  certain  cases."  Ibid.,  548 

See  PROMISSORY  NOTE;  SECURITY  FOR  COSTS,  3,  7. 

PAYMENT. 

1.  One  co-partner  or  co- purchaser  can  in  no  case  recover  in  an  action  for 

money  paid,  against  his  co-partner  or  co- purchaser,  until  the  money  has 
actually  been  paid;  nor  then  until  the  time  of  payment  has  arrived. 
Dedmanv.  Williams,  154 

2.  The  giving  of  a  note  is  no  payment.     Ibid.,  154 

3.  In  relation  to  the  law  of  appropriating  payments,  where  the  debtor  pays 

generally,  the  rule  is  well  settled  that  the  creditor  may  apply  the  pay- 
ment to  whatever  debt  he  sees  proper,  unless  there  are  circumstances 
that  would  render  the  exercise  of  such  discretion,  on  the  part  of  the 
creditor,  unreasonable,  and  enable  him  to  work  injustice  to  his  debtor. 
Arnold  v.  Johnson,  196 

4.  Where  W.  held  a  note  dated  Oct.  21 ,  1823,  for  8200,  made  by  M.  and 

payable  to  W.,  thirty  days  after  date;  and  another  note  for  $453. 10, 
dated  Aug.  9, 1815,  signed  also  by  M.,  and  M.  died  March  9,  1831;  and 
after  M.'s  death  a  receipt  was  found  among  his  papers,  given  by  W.  to 
M.,  in  full  of  all  demands,  dated  Feb.  3,  1831  and  another  receipt  in 
which  W.  promised  to  collect  a  note  for  $50,  and  to  pay  over  the  pro- 
ceeds to  the  intestate,  after  deducting  25  per  cent,  for  collecting,  dated 
December  25th,  1830:  Held  that  the  receipts  were  prima  facie  evidence 
of  the  payment  of  the  notes.  Marston  v.  Wilcox,  270 

5.  A  receipt  in  full  of  all  demands  is  prima  facie  evidence  of  the  payment 

of  all  notes  and  claims  existing  at  the  time  the  receipt  is  given.   *lbid., 

270 

PAUPER. 
See  EVIDENCE,  5,  R 

PENALTY. 
See  PENAL  STATUTES. 

696 


INDEX.  657 

PENAL  STATUTES. 

1.  Statute  penalties  are  in  tho  nature  of  punishments;  and  no  inferior  court 

or  jurisdiction  can  have  cog-nuance  of  any  penalty  recoverable  under  a 
penal  statute,  unless  jurisdiction  be  given  "to  it  in  express  terms.  Boiv- 
ers  v.  Green,  42 

2.  Justices  of  the  peace  have  no  jurisdiction  in  penal  actions,  except  in  cases 

where  such  jurisdiction  is  expressly  conferred.    Ibid.,  42 

See  SCHOOL,  FUND. 

PERJURY. 
See  CRIMINAL  LAW,  1. 

PLEADING. 

1.  A  count  on  a  promissory  note  and  a  count  for  goods,  wares,  and  mer- 

chandise sold  and  delivered,  may  be  joined  in  the  same  declaration. 
Bogardus  v.  Trial,  63 

2.  The  copy  of  an  agreement  or  instrument  in  writing  attached  to  a  decla- 

ration or  filed  with  it,  forms  no  part  of  the  declaration.  Ibid.,  63; 
Pearsons  v.  Lee,  193 

3.  Where  a  declaration  against  a  county  contained  two  counts,  one  of  which 

charged  that  the  contract  was  entered  into  with  the  "  Commissioners 
of  said  county,"  and  the  other  charged  that  the  contract  was  entered 
into  with  the  "  county  by  its  Commissioners:'"  Held,  that .there  was 
no  misjoinder  of  counts  or  parties.  Vermilion  County  v.  Knight,  97 

4.  A  declaration  averring  that  L.,  for  the  consideration  of  $-00  to  be  paid 

by  P.,  engaged  to  attend  the  sale  of  the  public  lands  at  C.,  at  a  certain 
day  named,  and  bid  off  a  quarter  section  of  land  provided  it  could  be 
purchased  for  eight,  dollars  an  acre,  and  averring  that  P.  was  ready  on 
his  part  to  pay  the  $z:00,  and  that  although  the  lands  sold  for  less  than 
eight  dollars  per  acre,  L.  did  not  purchase  the  same,  etc.,  is  good  on 
general  demurrer.  Pearsons  v.  Lee,  193 

5.  It  can  not  be  denied  that  a  constable  is  liable  where  he  has  willfully  neg- 

lected or  refused  to  execute  lawful  process  issued  upon  a  judgment  ren- 
dered by  a  justice  of  the  peace,  in  a  case  where  he  had  jurisdiction  of  the 
subject  matter  litigated ;  but  to  enforce  this  liability,  it  is  not  only  nec- 
essary for  the  declaration  to  allege  generally  that  the  magistrate  had 
jurisdiction,  but  it  should  set  out  specifically  the  kind  of  action,  and  ex- 
tent of  the  plaintiff's  claim,  in  order  to  show  to  the  Court  that  the  jus- 
tice had  jurisdiction.  Robinaon  \.  Harlan.  237 

6.  In  an  action  against  the  make*  of  a  note  or  the  acceptor  of  a  bill  of  ex- 

change, payable  at  a  specified  place,  it  is  not  necessary  to  aver  or  prove 
a  demand  of  payment  at  such  place.  Bntterfeld  v.  Kinzie,  445 

7.  A  count  in  a  declaration  against  a  purchase  of  canal  lands  or  lots,  for  fail- 

ure to  complete  the  purchase,  under  the  act  of  January  9,  1836,  must 
contain  an  averment  that  the  defendant  purchased  the  lot  at  a  public 
sale,  and  that  he  was  the  highest  bidder  therefor.  Illinois  and  Michi- 
gan Canal  v.  Calhoun,  521 

8.  Where  process  is  issued  to  a  foreign  county,  the  declaration  should  con- 

tain an  averment  of  the  facts  necessary  to  authorize  the  emanation  of 
the  writ  to  such  foreign  county.  An  averment  that  the  cause  of  action 
accrued  in  the  count}  where  the  suit  was  brought,  without  averring  that 
the  plaintiff  resided  there  ;it  the  time  of  the  commencement  of  the  suit, 
would  not  be  sufficient.  Key  y.  Collins,  403 

9.  There  can  be  no  impropriety  in  including  several  notes  in  one  count  in  a 

declaration,  where  each  of  the  notes  is  of  precisely  the  same  description. 
Godfrey  tt  al.  v.  Buckmaster,  447 

10.  Semble,  That  in  an  action,  by  scire  facias,  to  foreclose  a  mortgage  to 
the  school  fund,  the  jurv  may  assess  a  penalty  of  twenty  per  cent,  upon 
the  amount  of  principal  and  interest,  after  the  mortgage  became  due, 

697 


658  INDEX. 

although  there  is  no  averment  of  the  penalty  in  the  scire  facias.     Pear- 
nous  v.  Hamilton,  415 

11.  Where  a  plaintiff  relies  upon  a  new  promise  made  after  the  defendant 
became  of  use — the  original  contract  having  been  made  during-  infancy 
— he  should  declare  on  the  new  contract..    Bliss  et « I.  v.  Ferryman,    484 

12.  Where  at  the  bottom  of  a  bond  made  by  a  principal  and  his    surety,  a 
memorandum  was  annexed,  that  "  This  bond  is  executed  by  Mr.  H.  as 
security  for  Mr.  W.,"  the  principal:  Heldthat  the  fact  contained  in  said 
memorandum  could  not  be  pleaded  to  an  action  on  the  bond  against 
the  surety.    Held,  also,  that  it  was  unnecessary  to  notice  the  memoran- 
dum in  the  declaration.     Wilson  et  al.  v.  Campbell  et  al.,  493 

13.  Several  counts  in  case,  can  be  joined  in  one  declaration.     Gillet  et  al.  v. 
Stone  et  al.,  5^9 

M.  An  averment  in  a  declaration,  where  process  is  sent  to  a  foreign  coun- 
ty, that  the  cause  of  action  accrued  in  the  county  where  the  suit  was 
brought,  without  at  the  same  time  averring  that  the  plaintiffs  reside  in 
the  same  county,  is  not  sufficient  to  give  a  Circuit  Court  jurisdiction. 
Gillet  et  al.  v.  Stone  et  al.,  547 

15.  The  averment  at  the  end  of  a  declaration  containing  several  counts,  in  a 
suit  where  process  was  sent  to  a  foreign  county,  that  the  cause  of  action 
accrued  in  the  county  where  the  suit  was  brought,  and  within  the  juris- 
diction of  the  Court,  and  that  the  plaintiffs  reside  in  said  county,  is 
sufficient  to  give  the  Court  jurisdiction.     Gillet  et  al.  v.  Stone  et  al., 

539 

16.  In  an  action  by  an  indorsee  or  payee  against  the  maker,  upon  a  prom- 
issory note  payable  at  a  specified  time  and  place,  it  is  not  necessary  to 
aver  in  the  declaration,  or  prove  on  the  trial,  a  presentment  of  the  note 
for  payment.    Armstrong  v.  Caldwell,  546 

17.  In  an  action  upon  a  note  given  to  the  Commissioners  of  School  Lands 
of  a  county,  for  money  loaned  of  the  School  Fund,  in  order  to  entitle  the 
plaintiff  to  recover  the  twenty  per  centum  penalty  given  by  the  statute 
of  1835,  it  must  be  claimed  in  the  declaration.     Hamilton  v.  Wright, 

582 

See  JURISDICTION,  2;  MALICIOUS  PROSECUTION;  No.  34,  Post;  SCIRE  FA- 
CIAS, 6. 

Demurrer. 

18.  It  is  not  error  for  the  Court  to  give  final  judgment  against  the  defend- 
ant, upon  sustaining  the  plaintiff's  demurrer  to  a  bad  plea.     Clemson 
et  al.  v.  State  Bank  of  Illinois,  45 

19.  In  a  special  demurrer,  the  particular  exception  intended  to  be  relied  on 
should  be  minutely  set  forth.     Bogardus  v.  Trial,  63 

20.  In  order  to  take  advantage  on  demurrer  of  a  variance  between  the  note 
set  out  in  the  declaration,  and  the  copy  of  the  note  filed  with  the  same, 
oyer  should  be  craved,  and  the  note  set  out  in  hcec  verba  in  the  demur- 
rer.   Ibid..  93 

21.  A  scire  facias  to  foreclose  a  mortgage,  is  considered  both  as  process  and 
declaration ;  and  the  proper  course  to  take  advantage  of  informalities, 
is  by  demurrer.     Marshall  v.  Maury,  231 

22.  Upon  the  overruling  of  a  demurrer  to  a  plea,  if  the  plaintiff  reply,  he 
thereby  waives  the  demurrer,  and  can  not  afterward  assign  for  error, 
that  it  was  overruled.     Peck  v.  Boggess,  281 

23.  Upon  the  overruling  of  a  demurrer  to  a  declaration,  if  the  defendant  re- 
ply, he  thereby  waives  his  demurrer.     Buckmaster  v.  Grundy,       '  310 

24.  A  demurrer  to  a  plea  extends  back  to  the  declaration,  and  brings  both 
•under  review  before  the  Court.     Ibid.,  310 

25.  Where  there  is  a  general  demurrer  to  several  pleas,  if  any  one  of  tlm 
pleas  be  good,  the  demurrer  must  be  overruled.     Stacy  v.  Baker,     417 

26.  It  is  not  error  to  render  final  judgment  upon  demurrer.     If  a  party 
wishes  to  answer  over,  he  should  withdraw  his  demurrer.     Godj'ity  <t 
al.  v.  Buckmaster,  447 

69S 


INDEX.  659 

27.  Where  there  is  judgment  on  a  demurrer  against  the  party  demurring, 
if  he  wishes  to  avail  himself  in  the  Supreme  Court,  of  the  grounds  raised 
by  the  demurrer,  he  must  stand  by  his  demurrer  in  the  Court  below ; 
otherwise  he  will  be  precluded  from  assigning  for  error  the  judgment 
of  the  Circuit  Court.     Gilbert  et  al.  v.  Maggord,  47  i 

28.  Where  a  demurrer  was  interposed  to  the  replication  of  the  plaintiff  to 
one  of  the  defendant's  pleas,  issue  to  the  country  having  been  taken  on 
the  other  pleas,  and  the  parties  agreed  that  both  matters  of  law  and 
fact  arising  in  the  cause,  might  be  tried  by  the  Court,  and  after  hearing 
the  evidence,  the  Court  gave  judgment  for  the  plaintiff  for  damages, 
without  expressly  overruling  the  demurrer.     Held,  that  as  the  replica- 
tion was  sufficient,  there  was  no  error  in  the  proceedings.    Phillips 
v.  Dana,  498 

Generally. 

29.  The  granting  or  refusing  an  application  to  withdraw  a  plea  and  plead 
de  novo,  rests  in  the  discretion  of  the  Court.     Clemson  et  al.  v.  State 
Bank  of  Illinois,  45 

30.  If  one  of  several^  pleas  be  not  answered,  and  the  parties  go  to  trial  with- 
out any  objection  on  the  part  of  the  defendant,  the  irregularity  is 
waived.     Ross  et  al.  v.  Reddick,  73 

31.  Where  the  issue  is  wholly  immaterial,  the  verdict  of  the  jury  will  be  set 
aside.  _  The  rule  is,  that  where  matter,  be  it  never  so  well  pleaded, 
could  signify  nothing,  judgment  may,  in  such  cases,  be  given  as  by  cnn- 
fession.     Woods  v.  Hynes,  103 

32.  A  mortgage  of  lands  is  not  a  note,  bond,  bill,  or  other  instrument  in 
writing  within  the  meaning  of  the  act  in  relation  to  promissory  notes  ; 
and  a  want  of  consideration,  or  a  failure  of  consideration  can  not  be 
pleaded  to  a  scire  facias  to  foreclose  a  mortgage.    Hall  et  al.  v. 
Byrne  et  al.,  140 

33.  A  defendant  can  not  avail  himself  of  the  statute  against  usury,  unless 
the  sa'me  be  pleaded,  and  an  application  be  made  to  the  Court  where 
the  cause  is  pending,  for  the  benefit  of  the  act.     Hurry  y.  Crocker,  2i2 

34.  In  an  action  of  covenant  for  a  failure  to  convey  lands,  it  is  not  necessary 
to  aver  or  prove  a  consideration.    Buckmaster  v.  Grundy,  310 

35.  A  seal  imports  a  consideration     Ibid.,  310 

36.  Semble,  That  a  want  of  consideration  may  be  pleaded  to  an  action  upon 
a  bond  for  the  conveyance  of  lands.    Ibid.,  310 

37.  In  cases  of  independent  covenants,  a  plea  of  readiness  to  perform,  with- 
out averring  an  offer  of  performance,  is  bad,  and  furnishes  no  excuse 
for  the  non-performance.    Ibid.,  310 

38.  The  plea  of  non  estfactum  may  be  interposed  in  an  action  of  covenant 
without  being  verified  by  affidavit ;  and  under  it  the  defendant  may 
avail  himself  of  any  legal  defense  that  he  could  have  done  at  common 
law,  except  merely  denying  or  disproving  the  execution  of  the  instru- 
ment declared  on.    Longley  et  al.  v.  Norrall,  389 

39.  In  an  action  of  covenant  there  is  no  plea  which  can  strictly  be  termed  the 
general  issue  ;  but  the  general  issue  in  debt  is  correctly  used  to  answer, 
under  the  statute,  the  same  end  it  does  in  debt.    Ibid.,  389 

40.  Applications  to  amend  the  pleadings  in  a  cause  are  addressed  to  the 
sound  discretion  of  the  Court,  and  the  allowance  of  such  applications 
can  not  be  assigned  for  error.     Phillips  v.  Dana,  498 

41.  The  words  owner  and  proprietor,  are  insufficient  in  a  petition  for  dower, 
as  descriptive  of  the  estate  of  the  deceased  husband  of  the  petitioner. 
They  do  not  technically,  nor  by  common  usage,  describe  an  estate  in  foo 
simple  or  fee  tail.     Davenport  et  al.  v.  Farrar,  314 

42.  When  a  party  comes  into  a  court  of  justice,  it  is  incumbent  upon  him  to 
exhibit  a  right  to  recover,  in  clear  and  legal  language,  otherwise  the 
court  can  not  grant  the  relief  sought.     Ibid.,  314 

43.  A  petition  for  dower  should  state  such  facts  as  would  show  that  the  hus- 
band of  the  petitioner  was  possessed  of  such  an  estate  as  is  contem- 
plated by  the  statute.    Ibid.,  314 


660  INDEX. 

44.  In  an  action  for  forcible  entry  and  detainer,   the  description  of  the 
premises  in  the  affidavit,  was  as  follows:     "  The  premises  inclosed  by  us 
situate  in  the  county  of  Cook  and  State  of  Illinois,  being  the  same  on 
which  you  now  reside,  containing  about  one  hundred  acres,  more  or  less, 
and  commoiily  called  North  Grove :"    Held,  that  the  description  was 
sufficient.     Atkinson  v.  Lester  et  al.,  407 

45.  Where  the  record  of  a  cause  stated  that  "  the  defendant  filed  his  plea, 
and  the  plaintiff  joined  thereto,"  but  the  plea  and  joinder  were  not  on 
tile,  and  copies  of  the  same  were  not  given  in  the  record:    Held,  that 
the  inference  was,  that  the  issue  was  an  issue  to  the  country.     Archer 
v.  Spillman  et  al.,  553 

46.  Where  the  pleadings  in  a  cause  are  lost,  the  Court  should  permit  the  par- 
ties to  plead  de  noro.    Ibid.,  553 

47.  Infancy  is  not  a  dilatory  plea.     Gfreer  v.  Wheeler,  554 

48.  Where  a  motion  is  made  in  the  Court  below  to  set  aside  an  issue  as  im- 
material, the  fact  should  be  stated  in  a  bill  of  exceptions.     Burlingame 
et  al.  v.  Turner,  588 

49.  It  is  not  the  duty  of  the  Circuit  Court,  of  its  own  motion,  to  set  aside  an 
immaterial  issue.     Ibid.,  588 

50.  A  motion  to  set  aside  an  immaterial  issue,  must  be  made  in  the  Court 
where  the  verdict  is  rendered,  if  the  party  wishes  to  raise  the  question 
in  the  Supreme  Court.     Ibid.,  588 

See  No.  12,  Ante;  APPEARANCE;  CHANCERY;  DECLARATION,  7. 

POSSESSION.   . 

1.  In  actions  of  trespass  qttare  clausumfregit,  the  law  is  well  settled,  that 

possession  of  the  close  is  sufficient  to  sustain  the  action  against  any  per- 
son who  shall  enter  upon  that  possession,  except  the  owner.  Webb  v. 
Sturtevant,  181 

2.  The  possession,  where  that  alone  is  relied  on,  must  be  an  actual  and  not  a 

constructive  possession.     Ibid.,  181 

3.  The  mere  entry  upon  a  tract  of  land  without  any  color  of  title,  and  in- 

closing a  small  part  of  it,  does  not,  of  itself,  constitute  an  actual  posses- 
sion of  any  more  land  than  is  inclosed.  Ibid.,  181 

See  FRAUD;  PROMISSORY  NOTES,  7. 

POWERS. 
See  CONSTRUCTION  OP  STATUTES. 

POWER  OF  ATTORNEY. 

1.  Where  a  super sedeas  bond  purported  to  be  executed  by  a  person  as  attor- 

ney in  fact,  in  the  name  of  his  principal,  and  the  authority  of  the  attor- 
ney did  not  appear:  Held,  that  the  Court  would  presume  that  the  at- 
torney had  authority  to  execiite  the  bond,  unless  his  authority  was  ques- 
tioned by  affidavit.  Campbell  et  al.  v.  State  Bank  of  Illinois,  423 

2.  A  power  of  attorney  to  confess  a  judgment,  is  usually  under  seal ;  but  if  it 

be  made  without  a  seal,  still  one  partner  can  not  by  it  bind  his  co-part- 
ner. Sloo  v.  State  Bank  of  Illinois,  428 

3.  Quere,  Whether  a  judgment  confessed  for  a  larger  amount  than  is  actu- 

ally due.  can  be  valid.     Ibid.,  428 

4.  Quere,  Whether  one  partner  can,  after  the  rendition  of  a  judgment 

against  both  upon  a  power  of  attorney  to  confess  a  judgment,  executed 
by  one  only  in  the  name  of  the  firm,  without  the  knowledge  of  the  other, 
ratify  and  make  valid  such  judgment.  Ibid.,  428 

See  ATTORNEY. 

PRACTICE  IN  THE  CIRCUIT  AND  MUNICIPAL  COURTS. 
1.  In  proceedings  against  a  sheriff,  under  §  30  of  the  practice  act,  by  mo- 

700 


INDEX.  661 

tion  for  failing  to  pay  over  money  collected  by  him  on  execution,  the 
judgment  should  be  for  the  amount  collected,  and  interest  thereon,  at 
the  rate  of  tiventy  per  centum  per  annum.  Beaird  v.  Foreman,  40 

2.  The  remedy  given  by  §   14  of  the  "  Act  concerning   Sheriffs  and  Coro- 

ners,''' is  a  distinct  remedy  from  that  given  by  §  80  of  the  practice  act; 
and  it  is  in  the  option  of  the  plaintiff  in  execution  to  resort  to  whichever 
he  pleases.  Ibid.,  40 

3.  Under  the  general  issue,  in  an  action  by  an  administrator,  proof  that  the 

plaintiff  had  received  letters  of  administration  upon  the  estate  of  his 
intestate,  is  unnecessary.  The  fact  whether  he  was  or  was  not  an  ad- 
ministrator, is  not  put  in  issue.  McKinley  v.  Bi'aden,  64 

4.  If  one  of  several  pleas  be  not  answered,  and  the  parties  go  to  trial  with- 

out any  objection  on  the  part  of  the  defendant,  the  irregularity  is 
waived.  Boss  et  al.  v  Reddick,  73 

5.  Where  the  issue  is  wholly  immaterial,  the  verdict  of  the  jury  will  be  set 

aside.  The  rule  is  that  where  matter,  be  it  never  so  well  pleaded, 
could  signify  nothing,  judgment  may  in  such  cases  be  given  as  by  con- 
fession. Woods  v.  Hynes,  103 

6.  Whether  a  written  contract  contains  a  condition  precedent  or  not  is  a 

question  of  law  for  the  Court  to  decide  ;  and  it  is  not  a  matter  for  the 
consideration  of  the  jury.  Crocker  v.  Goodsell  et  al.,  107 

7»  An  alteration  of  the  process  of  the  Court,  between  its  delivery  by  the 
clerk  to  the  party  or  his  attorney,  and  its  reception  by  the  sheriff  is  ille- 
gal, and  highly  improper.  The  People  v.  Li-mborn,  123 

8.  If  judgment  be  rendered  by  default  against  a  defendant  who  has  not  been 

served  with  process,  the  proceedings  are  coram  uonjndice.  But  the  re- 
versal of  such  a  judgment  does  not  affect  the  rights  of  the  plaintiff  be- 
low. Ditchv.  Edtvards,  127 

9.  Objections  to  jurors  if  known  should  be  made  before  trial.     Wickersham 

v.  The  People,  128 

10.  Exceptions  taken  upon  the  first  trial,  a  new  trial  being  granted  and  had, 
can  not  avail  the  party  excepting.     In  order  to  be  available,  the  excep- 
tions should  have  been  renewed  on  the  last  trial  (if  the  same  ground  of 
exception  occurred).     Harmisonv.  Clark  et  al.,  131 

11.  It  is  too  late  to  make  an  application  to  set  aside  a  default,  after  one  term 
of  the  Court  has  intervened  between  the  term  at  which  the  default  was 
taken  and  that  at  which  the  motion  was  made.     Garner  et  al.  v.  Cren- 
shaw, 

12.  A  defendant  by  suffering  judgment  to  go  by  default  is  out  of  Court,  and 
has  no  right  to  except  to  testimony.     He  is  however  permitted  to  cross- 
examine  the  witnesses,  but  he  can  not  introduce  testimony,  or  make  a 
defense  to  the  action.     Should  improper  testimony  or  wrong  instruc- 
tions be  given,  the  proper  course  is  to  apply  to  the  Court  to  set  aside  the 
inquisition  and  grant  a  new  inquest.     Bailey  et  al.  v.  Morton, 

13.  The  remedy  given  by  statute,  to  collect  fees  by  making  out  a  fee  bill 
and  delivering  it  to  an  officer,  is  a  cumulative  remedy,  but  it  does  not 
take  away  the  common  law  remedy  by  suit.    Ibid., 

14.  The  reasons  filed  by  a  party,  as  the  foundation  for  a  motion  m  the  Cir- 
cuit Court,  do  not  thereby  become  a  part  of  the  record.    To  make  them 
a  part  of  the  record,  they  should  be  embodied  in  a  bill  of  exceptions. 
Vanlandingham  v.  Fellows  et  aL, 

15.  If  any  irregularity  take  place  in  the  execution  of  a  writ  of  inquiry,  the 
proper  way  is  to  apply  upon  affidavit  to  the  Circuit  Court  to  set  tl 
inquest  aside.    I  bid. , 

16.  A  writ  of  inquiry  may  be  executed  in  vacation  as  well  as  in  term  time. 
It  may  be  executed  at  any  place  within  the  sheriff's  bailiwick.  The  stat- 
ute has  not  changed  the  common  law  in  this  respect.  _  Ibid.,  233 

17.  Where  a  cause  hcos  been  referred  by  a  rule  of  Court,  it  is  incumbent  on 
the  party  objecting  to  the  report  of  the  referees,  to  show  by  affidavit 
that  some  irregularity  has  occurred.     In  the  absence  of  such  proof  their 
proceedings  will  be  deemed  to  have  been  regular.    It  is  to  be  presumed 

701 


662  INDEX. 

that  the  requisite  forms  have  been  observed,  in  a  case  like  the  present, 
without  a  recital.     Vanlandingham  v.  Loivery,  240 

18.  The  course  to  be  pursued  in  a  case  tried  by  the  Court  without  a  jury, 
where  the  defendant  supposes  that  the  plaintiff  has  failed  to  support  his 
action,  is  to  move  the  Court  to  non-suit  the  plaintiff  or  to  demur  to  the 
testimony.     If  he  does  neither,  and  goes  on  and  gives  evidence,  the 
office  of  the  judge  is  then  completely  merged  into  that  of  a  juror,  and 
his  decision,  if  wrong,  can  only  be  reviewed  in  the  same  manner  as  the 
wrong  verdict  of  a  jury,  to  wit,  by  application  for  a  new  trial.     Gil- 
more  v.  Ballard,  252 

19.  Where,  after  pleading,  a  defendant  stipulated  that  judgment  might  go 
as  by  default,  on  his  failure  to  file  a  paper  on  a  given  day,  and  on  such  fail- 
ure judgment  was  entered  notwithstanding  the  plea:    Held  that  there 
•was  no  error.     Foster  v.  Filley,  256 

20.  Where  a  judgment  is  rendered  for  the  plaintiff  on  demurrer  to  the  de- 
fendant's plea,  the  plaintiff  may  have  an  inquest  to  ascertain  the  dam- 
ages or  he  may  waive  this  and  take  judgment  for  nominal  damages. 
Boon  v.  Juliet,  258 

21.  When  the  process  by  which  a  court  obtains  jurisdiction  of  a  cause  is 
irregular,  if  no  objection  is  made,  the  irregularity  is  waived.    Pearce 
et  al.  v.  Swan,  266 

22.  Upon  the  overruling  of  a  demurrer  to  a  plea,  if  the  plaintiff  reply,  he 
thereby  waives  the  demurrer,  and  can  not  afterward  assign  for  error 
that  it  was  overruled.     Peck  v.  Boggess,  281;  Buckmaster  v.  Grrundy, 

3lO 

23.  Unless  a  party  excepts  to  instructions  in  the  Court  below,  he  can  not  as- 
sign them  for  error  in  the  Supreme  Court.     Ibid.,  310 

24.  When  a  party  comes  into  a  court  of  justice,  it  is  incumbent  upon  him  to 
exhibit  a  right  to  recover,  in  clear  and  legal  language,  otherwise  the 
Court  can  not  grant  the  relief  sought.     Davenport  v.  Farrar,  314 

25.  A  petition  for  dower,  should  state  such  facts  as  would  show  that  the 
husband  of  the  petitioner  was  possessed  of  such  an  estate  as  is  contem- 
plated by  the  statute.     Ibid.,  314 

26.  Where  a  cause  is  dismissed  upon  motion  of  the  plaintiff,  it  should  be  at 
his  costs.     Kinman  v.  Bennett,  326 

27.  Where  the  record  of  the  Circuit  Court  does  not  show  for  what  cause  an 
appeal  was  dismissed,  and  a  judgment  for  costs  is  rendered  against  the 
appellant,  the  judgment  will  be  reversed.     Ibid.,  326 

28.  A  judgment  by  default  is  irregular,  unless  it  appear  by  a  return  on  the 
process,  that  it  had  been  served,  and  on  what  day  the  service  was  made. 
The  reversal  of  a  judgment  by  default,  where  process  from  the  Court 
below  had  not  been  •served  on  the  defendant  in  that  Court,  does|  not 
prfjidice  any  future  proceedings.     Garrett  v.  Phetys,  331 

29.  Where  a  writ  is  tested  in  the  name  of  a  person  AV!IO  was  not,  at  the  date 
of  the  test,  judge  of  the  Court,  the  objection  can  be  taken  advantage  of 
only  by  motion  in  the  Court  from  which  the  process  issued.     The  mis- 
take can  not  be  assigned  for  error  in  this  Court.    Beaubien  v.  Barbour, 

386 

30.  Where  the  record  shows  that  a  plea  was  filed  and  judgment  by  default 
rendered  on  the  same  day,  the  judgment  will  be  reversed.    The  Court 
will  not  presume  that  the  plea  was  filed  after  the  judgment  was  ren- 
dered.    Isyonv.  Barney,      '  387 

31.  After  plea  of  not  guilty  has  been  filed,  putting  a  cause  at  issue,  the  Court 
can  not  on  calling  of  the  defendants,   render  a  judgment  by  default; 
a  jury  should  be  impaneled,  and  a  trial  had,  in  the  same  manner  as  if 
the  defendants  had  answered  when  called.     Manloce  et  al.  v.  Bruner, 

390 

32.  It  is  erroneous  to  take  judgment  by  default,  where  a  plea  of  non- 
assumpsit  is  interposed.    A  jury  should  be  impaneled  to  try  the  issue, 
whether  the  defendant  be  present  or  absent.     Covell  et  al.  v.  Marks, 

391 

702 


INDEX.  663 

33.  An  affidavit  of  the  facts  -which  give  the  Court  jurisdiction,  is  not  nec- 
essary to  authorize  the  issuing  of  process  to  a  foreign  county,  and  if  it 
is  made,  it  does  not  thereby  become  a  part  of  the  record,  or  dispense 
with  the  averment  of  those  facts  in  the  declaration.     Key  v.  Collins, 

403 

34.  Where  the  evidence  tends  to  prove  the  issue,  the  jury  should  be  left  to 
determine  the  cause  under  the  evidence  offered.     In  such  a  case,  the 
Court  has  no  power  to  take  the  cause  from  them,   nor  to  advise  them 
that  the  defendant  is  entitled  to  their  verdict.    Davis  v.  Hoxey,      406 

35.  The   Circuit  Court  may_  set  aside  a  defective  verdict,  ant!  award  a 
venire  de  novo,  in  a  criminal  case,  where  the  facts  found  are  so  defective 
that  no  judgment  can  be  rendered  upon  such  verdict.     Lawrence  et  al. 
v.  The  People,  414 

36.  It  is  not  error  to  render  final  judgment  upon  demurrer.    If  a  party  wishes 
to  answer  over,  he  should  withdraw  his  demurrer.     Godfrey  et  al.  v. 
Bucktnaster,  447 

37.  A  defendant  can  not  deny  the  execution  of  .a  promissory  note,  upon 
which  he  is  sued,  or  dispute  its  genuineness,  unless  he  verify  his  denial 
by  affidavit.     Linn  v.  Buckingham  etal.,  451 

38.  When  an  action  is  brought  upon  a  promissory  note,  and  a  declaration 
is  filed  containing  a  special  count  on  the  note,  and  the  common  counts, 
and  a  copy  of  the  note  is  filed  with  the  declaration,  it  is  unnecessary  to 
file  an  account  in  order  to  give  the  note  in  evidence  under  the  common 
money  counts.     The  People  v.  Pearson,  458 

39.  Where  the  Circuit  Court  ^granted  a  continuance,  because  an  account  was 
not  filed  with  a  declaration  upon  a  promissory  note,  which  also  con- 
tained the  usual  common  counts,  although  the  plaintiff  offered  to  file  a 
stipulation  that  he  claimed  to  recover  only  upon  the  note  which  was 
filed  with  the  declaration  ten  days  before  the  session  of  the  Court,  un- 
less the  plaintiff  would  strike  the  common  counts  out  of  his  declaration, 
the  Supreme  Court  granted  a  peremptory  writ  of  mandamus  to  the 
judge  of  the  Circuit  Court,  commanding  that  Court  to  proceed  with 

40.  the  cause  without  requiring  the  account  to  be  filed.    Ibid.,  458 

41.  Semble,  That  where  a  notice  of  an  application  for  a  writ  of  mandamus 
to  a  judge  of  the  Circuit  Court  is  served  upon  the  opposite  party  in 
interest  and  the  judge  of  the  Court,  and  the  law  is  plain,  the  Supreme 
Court  will  grant  a  peremptory  writ  in  the  first  instance.    Ibid.,      458 
Where  there  is  judgment  on  a  demurrer  against  the  party  demurring, 
if  he  wishes  to  avail  himself  in  the  Supreme  Court  of  the  grounds  raised 
by  the  demurrer  he  must  stand  by  his  demurrer  in  the  Court  below, 
otherwise  he  will  be  precluded  from  assigning  for  error  the  judgment 
of  the  Circuit  Court.     Gilbert  et  al.  v.  Maggord,  471 

42.  It  is  unnecessary  to  file  an  account  with  a  declaration  upon  a  bill  of  ex- 
change containing  a  special  count  on  the  bill,  and  the  common  money 
counts,  in  order  to  use  the  bill  as  evidence  under  the  money  counts. 
The  People  v.  Pearson,  473 

43.  Where  the  Circuit  Court  granted  a  continuance  because  an  account  was 
not  filed  with  the  declaration  on  a  bill  of  exchange  which  contained 
a  special  count,  and  the  common  money  counts,  although  the  declara- 
tion and  a  copy  of  the  bill  declared  on  were  filed  more  than  ten  days 
previous  to  the  session  of  the  Court,  the  Supreme  Court  granted  a  writ 
of  mandamus  to  the  judge  of  the  Circuit  Court  directing  him  to  rescind 
the  order  for  a  continuance,  and  proceed  with  the  cause  upon  the  merits 
without  requiring  the  plaintiff  to  file  an  account  under  the  money 
counts.    Ibid.,  473 

44.  Where  the  precept  for  summoning  the  jury  at  a  special  term  of  a  Cir- 
cuit Court  called  for  the  trial  of  a  prisoner  charged  with  a  capital  crime, 
had  been  lost  by  the  sheriff,  and  the  Court  directed  a  new  one  to  be 
filed  nunc  pro  tune:    Held,  that  there  was  no  error.     Guykoicski  v. 
The  People,  476 

45.  Where  a  demurrer  was  interposed  to  the  replication  of  the  plaintiff  to 

703 


664  INDEX. 

one  of  the  defendant's  pleas,  issue  to  the  country  having  been  on  the 
other  pleas,  and  the  parties  agreed  that  both  matters  of  law  and  fact 
arising  in  the  cause  might  be  tried  by  the  Court;  and  after  hearing  the 
evidence  the  Court  gave  judgment  for  the  plaintiff  for  damages,  with- 
out expressly  overruling  the  demurrer:  Held,  that  as  the  replication 
was  sufficient,  there  was  no  error  in  the  proceedings.  Phillips  v.  Dana, 

498 

46.  The  practice  of  excluding  evidence,  after  it  has  been  received,  where 
some  one  important  link  in  the  chain,  necessary  to  establish  the  right 
claimed,  i*  wanting,  seenr  to  have  been  adopted  in  many  of  the  courts 
of  the  Western  States,  as  an  equivalent  for  instructing  the  jury  that  for 
want  of  such  proof,  the  party  has  not  made  out  the  point  sought  to  be 
established.     Williams  v.  Claytor  et  al.,  502 

47.  Semblf,  That  where  in  an  action  of  ejectment,  the  verdict  of  the  jury 
•was  rendered  in  favor  of  the  lessors  of  the  plaintiff,  no  objection  can  be 
raised  on  that  account  in  the  Supreme  Court.     Ibid  ,  502 

48.  It  is  error  to  take  judgment  by  default,  where  a  plea  is  filed  to  the  dec- 
laration or  petition.     McKinney  v.  May,  534 

49.  A  party  intending  to  move  to  quash  an  execution,  should  give  the  op- 
posite party  notice  of  his  intended  motion.     Where  an  execution  was 
quashed  without  such  notice,  the  Supreme  Court  reversed  the  decision, 
and  remanded  the  cause.     Dazey  v.  Orr  et  al.,  535 

50.  Semble,  That  where  the  verdict  of  a  jury  is  for  a  greater  sum  than  the 
ad  damnum  laid  in  the  declaration,  the  plaintiff  may  remit  the  excess, 
and  take  judgment  for  the  sum  laid.     Gillet  et  al.  v.  Stone  et  al.,     539 

51.  Where  an  action  of  assumpsit  is  commenced  against  several,  only  one  of 
whom  pleads  to  the  action,  and  the  default  of  the  others  is  entered,  it  is 
erroneous  to  take  final  judgment  against  them  until  the  issue  as  to  the 
defendant  who  pleads  is  disposed  of.     Russell  et  al.\.  Hog  an  et  al., 

552 

51.  In  an  action  ex  contractu  against  several  defendants,  the  judgment  is 
a  unit;  it  must  be  rendered  against  all  or  none.    The  cause  can  not  be 
continued  as  to  one  who  has  pleaded,  and  final  judgment  rendered 
against  the  others.     Ibid.,  552 

52.  In  summary  proceedings  under  a  statute,  the  provisions  of  the  statute 
must  be  strictly  complied  with.    Day  v.  Cushman  et  al.,    •  475 

53.  All  mere  formal  objections  to  an  indictment  should  be  made  before 
pleading.     Guykmvski  v.  The  People,  476 

54.  Where  the  record  of  a  cause  stated  that  "the  defendant  filed  his  plea, 
and  the  plaintiff  joined  thereto,"  but  the  plea  and  joinder  were  not  on 
file,  and  copies  of  the  same  were  not  given  in  the  record:  Held,  that 
the  inference  was,  that  the  issue  was  an  issue  to  the  country.    Archer 
v.  Spillman  et  al.,  553 

55.  Where  an  issue  of  fact  is  joined  in  an  action,  the  cause  must  be  tried  by 
a  jury,  unless  the  parties  expressly  agree  that  it  shall  be  tried  by  the 
Court;  and  in  such  case  the  agreement  should  be  stated  on  the  record. 
Ibid.,  553 

56.  Where  the  pleadings  in  a  cause  are  lost,  the  Court  should  permit  tin 
parties  to  plead  de  novo.    Ibid.,  553 

57.  Where  a  motion  is  made  in  the  Court  below,  to  set  aside  an  issue  as  im- 
material, the  fact  should  be  stated  in  a  bill  of  exceptions.     Burlingame. 
et  al.  v.  Turner,  588 

58.  It  is  not  the  duty  of  the  Circuit  Court,  of  its  own  motion,  to  set  aside  an 
immaterial  issue.     Ibid.,  r^ 

59.  A  motion  to  set  aside  an  immaterial  issue,  must  be  made  in  the  Court 
where  the  verdict  is  rendered,  if  the  party  wishes  to  raise  the  question 
in  the  Supreme  Court.     Ibid.,  588 

60.  Where  matters  of  law  and  fact  are  both  submitted  to  the  Court  for  trial, 
and  a  jury  waived,  it  is  competent  for  the  Court,  after  having  found  the 
issues  for  the  plaintiff,  to  direct  the  clerk  to  assess  the  damages  on  a 
promissory  note.    Ibid.t  588 

704 


INDEX.  665 

61.  Where  a  contract  is  joint,  and  only  one  of  the  makers  are  sued,  the  non- 
joinder of  the  other  parties  can  be  taken  advantage  of  only  by  plea  in 
abatement.     Litrton  \.  Gillinm  et  al.,  577 

62.  The  prayer  for  an  appeal  from  the  Circuit  to  the  Supreme  Court,  may 
be  made  at  any  time  duYing  the  term  in  which  the  judgment  is  ren- 
dered.    Balance  v.  Frisby  et  al.,  5(J5 

In  the  Supreme  Court. 

63.  Where  the  record  of  the  Circuit  Court  does  not  show  for  what  cause  an 
appeal  was  dismissed,  and  a  judgment  for  costs  is  rendered  against  the 
appellant,  the  judgment  will  be  reversed.     Kinman  v.  Bennett,        326 

64.  Where  the  record  shows  that  a  plea  was  filed,  and  judgment  by  default 
rendered  on  the  same  day,  the  judgment  will  be  reversed.    The  Court 
will  not  presume  that  the  plea  was  filed  after  the  judgment  was  ren- 
dered.    Lyon  v.  Barney,  387 

65.  Semble,  That  where  a  notice  of  an  application  for  a  writ  of  mandamus 
to  a  judge  of  the  Circuit  Court,  is  served  upon  the  opposite  party  in  in- 
terest and  the  judge  of  said  Court,  and  the  law  is  plain,  the  Supreme 

..-Court  will  grant  a  peremptory  writ  in  the  first  instance.     The  People 
v.  Pearson,  458 

66.  Semble,  That  where  in  an  action  of  ejectment,  the  verdict  of  the  jury 
was  rendered  in  favor  of  the  lessors  of  plaintiff,  no  objection  can  be 
raised  on  that  account,  in  the  Supreme  Court.     Williams  v.  Clay  tor  et 
al.,  502 

67.  Where  the  bill  of  exceptions  enables  the  Court  to  ascertain  the  sum  that 
would  have  been  recovered,  if  instructions  asked  for  had  been  given,  it 
is  unnecessary  to  send  the  case  back  for  a  new  trial ;  judgment  will  be 
rendered  for  that  amount  in  the  Supreme  Court.     Pearsons  et  al.  v. 
Bailey,  507 

68.  A  motion  to  set  aside  an  immaterial  issue,  must  be  made  in  the  Court 
where  the  verdict  is  rendered,  if  the  party  wishes  to  raise  the  question 
in  the  Supreme  Court.     Burlitigame  et  al.  v.  Turner,  588 

69.  A  mistake  in  making  up  the  record  of  a  cause  may  be  corrected  at  a 
term  subsequent  to  that  at  which  the  same  was  disposed  of.     Mitcheltree 
v.  Sparks,  122 

70.  In  general,  where  the  complainant  is  not  the  person  injured,  application 
for  a  rule  against  an  attorney  to  show  cause  why  his  name  should  not  be 
stricken  from  the  roll,  should  be  based  upon  the  affidavit  of  some  person 
who  shall  affirmatively  allege  the  truth  of  the  charges  preferred  against 
the  attorney,  and  not  merely  his  belief  in  the  truth  from  the  informa- 
tion of  others.     The  People  v.  Lamborn,  123 

71.  A  cause  will  not  be  remanded  where  the  proceedings  in  the  Court  below 
are  coram  non  judice.     Ditch  v.  Edn-ards,  127 

72.  The  Supreme  Court  will  not.  on  motion,  set  aside  a  default,  and  vacate 
a  judgment  of  a  Circuit  Court.     Aiken  v.  Deal,  327 

73.  Where  in  an  action  of  debt,  a  judgment  for  damages  is  rendered,  the 
judgment  will  be  reversed;  but  the  error  will  be  corrected  in  this  Court, 
and  such  a  judgment  given  as  the  Court  below  should  have  rendered. 
Guild  et  al.  v.  Johnson,  405 

74.  Where,  upon  the  reversal  in  part  of  the  judgment  of  the  Court  below, 
final  judgment  can  be  rendered  in  this  Court,  the  cause  will  not  be  re- 
manded.    Pearsons  v.  Hamilton,  415;  Pearsons  etal.  v.  Bailey,    507 

75.  Where  a  supersedeas  bond  purported  to  be  executed  by  a  person  as  at- 
torney in  fact,  in  the  name  of  his  principal,  and  the  authority  of  the  at- 
torney did  not  appear:     Held,  that  the  Court  would  presume  that  the 
attorney  had.autnority  to  execute  the  bond,  unless  his  authority  was 
questioned  by  affidavit.     [But  see  note  at  the  end  of  this  case.]    Camp- 
bell et  al.  v.  State  Batik  of  Illinois,  423 

76.  A  writ  of  error  will  lie  to  the  decision  of  a  Circuit  Court  upon  a  motion 
to  set  aside  a  judgment,  and  quash  an  execution,  issued  thereon.    Sloo 
v.  State  Bank  of  Illinois,  428 

VOL.  1-45  «06 


666  INDEX. 

77.  SetnbJe,  That  the  defendants  in  error,  by  joining1  in  error,  waive  all 
objection  to  the  assignment  of  errors,  if  the  rigid  rules  of  pleading  be 
adnered  to;  the  joinder  being  only  considered  as  a  demurrer  to  the  as- 
signment of  errors,  in  cases  where  the  errors  are  not  well  assigned,  and 
contradict  the  record.    Ibid.,  '  428 

78.  By  anile  of  the  Supreme  Court,  no  errors  will  be  inquired  into,  but 
such  as  are  assigned.     Gilbert  etal.  v.  Maggord,  471 

79.  The  Supreme  Court  will  presume  that  a  bond'  executed  by  an  attorney 
in  the  name  of  his  principals,  and  filed  in  the  Court  below,  was  executed 
by  a  person  duly  authorized,  and  that  the  Court  below  was  satisfied  of 
that  fact,  unless  the  contrary  appears.     Sheldonv.  ReiMe  et  al.,        519 

80.  On  appeal  from  the  Circuit  to  the  Supreme  Court,  a  variance  between 
the  amount  of  the  judgment  appealed  from,  and  the  amount  recited  in 
the  bond,  is  fatal,  though  the  variance  occurred  through  the  mistake  or 
inadvertence  of  the  clerk  of  the  Circuit  Court.     Brooks  et  al.  v.  The 
Totcn  of  Jacksonville,  568 

81.  Where  an  appeal  is  dismissed,  the  Court  will  not  permit,  the  transcript 
of  the  record  to  be  withdrawn  for  the  purpose  of  bringing  a  writ  of 
ei~or.    Ibid.,  568 

82.  Where  the  Court  have  reason  to  believe  that  a  cause  is  fictitious,  they 
will  require  proof  that  the  action  is  not  feigned.    McConnell  v.  Shields, 

582 

83.  Semble,  That  the  Court  will  presume  that  an  affidavit  made  upon  a 
motion  for  a  new  trial,  and  referred  to  in  the  bill  of  exceptions  taken 
upon  the  overruling  of  the  motion  is  true,  unless  the  sarne  is  disputed 
in  the  record.    Afulford  v.  Shepard,  583 

See  ALIMONY;  AMENDMENT;  APPEAL;  APPEARANCE,  1:  BILL  OP  EXCEP- 
TIONS; CHANCERY;  COSTS,  1;  DAMAGES;  DETINUE;  DISCRETION,  1; 
ERROR,  1,  2;  INSTRUCTIONS;  JURISDICTION,  2,  3;  MALICIOUS  PROSE- 
CUTION, 1;  NEW  TRIAL;  PROCESS;  EIGHT  OF  PROPERTY,  1;  SCIRE  FA- 
CIAS; SHERIFF;  VENUE,  2,3. 

PRE-EMPTION. 

1.  The  pre-emption  laws  of  the  United  States  can  not  be  construed  as-  invi- 

tations to  settle  upon  the  public  lands.     Carson  v.  Clark,  1 13 

2.  A  pre-emption  right  is  not  an  estate  of  which  a  widow  can  be  endowed. 

Davenport  et  al.  v.  Farrar,  314 

See  EJECTMENT;  PUBLIC  LANDS. 

PRESENTMENT. 
See  PROMISSORY  NOTES,  16,  33. 

PRINCIPAL  AND  AGENT. 
See  ADMINISTRATOR,  5;  ATTORNEY;  BOND,  1,  3,  4;  POWER  OF  ATTORNEY. 

PRINCIPAL  AND  SURETY. 
See  ADMINISTRATOR;  ATTORNEY;  BOND,  2,  5;  SURETY. 

PROBATE  COURT. 
See  ADMINISTRATOR  AND  EXECUTOR;  APPEAL. 

PROCESS. 

1.  An  alteration  of  the  process  of  the  Court,  between  its  delivery  by  the 

clerk  to  the  party  or  his  attorney,  and  its  reception  by  the  sheriff,  is 
illegal  and  highly  improper.     The  People  v.  Ltimbot'n,  123 

2.  A  summons  not  under  seal,  issued  from  the  Circuit  Court,  should  be 

quashed  on  motion  in  that  Court.    Uannum  v.  Thompson,  238 

706 


INDEX.  667 

3.  Irregularity  of  process,  whether  the  process  be  void  or  voidable,  is  cured 

by  appearance  without  objection.     Easton  etal.  v.  Altum,  250 

4.  The  want  of  a  seal  to  a  summons  can  not  be  taken  advantage  of  after  an 

appearance.     Ibid.,  250 

5.  Where  the  process  by  which  a  court  obtains  jurisdiction  of  a  cause  is  irregu- 

lar, if  no  objection  is  made,  the  irregularity  is  waived.  Pearce  et  al.  v. 
Swan,  266 

5.  Where  a  writ  is  tested  in  the  name  of  a  person  who  was  not,  at  the  date 

of  the  test,  judge  of  the  Court,  the  objection  can  be  taken  advantage  of 
only  by  motion  in  the  Court  from  which  the  process  issued.  The  mis- 
take can  not  be  assigned  for  error  in  this  Court.  Beaubien  v.  Bar- 
hfntr,  386 

6.  The  act  of  July,  1837,  provides  for  the  cases  of  irregular  tests  of  writs, 

and  legalizes  them.     Ibid.,  386 

7.  Where  a  summons  is  issued  not  under  the  seal  of  the  Court,  the  Court 

should,  on  motion,  quash  it.  It  is  error  to  refuse  such  a  motion.  An- 
glin  v.  Nott,  395 

9.  Original  process  can  be  issued  to  a  different  county  from  that  in  which 

the  action  is  commenced,  in  the  three  following  cases  only: 

1.  Where  the  plaintiff  resides  in  the  county  in  which  the  action  ia 
commenced,  and  the  cause  of  action  accrued  in  such  county. 

2.  Where  the  contract  is  made  specifically  payable  in  the  county  in 
which  the  action  is  brought.     In  this  case,  no  regard  is  paid  to  the 
residence  of  the  plaintiff. 

3.  Where  there  are  several  defendants  residing  in  different  counties, 
and  the  action  is  commenced  in   the  county  in  which  some  one  of  the 
defendants  resides.     Key  v.  Collins,  403 

10.  An  affidavit  of  the  facts  which  give  the  Court  jurisdiction  is  not  neces- 
sary to  authorize  the  issuing  of  process  to  a  foreign  county;  and  if  it  is 
made,  it  does  not  thereby  become  a  part  of  the  record,  or  dispense  with 
the  averment  of  those  facts  in  the  declaration.    Ibid.,  403 

See  CONSTABLE;  JURISDICTION;  SCIRE  FACIAS;  SERVICE  OF  PROCESS. 

PROCLAMATION. 
See  GOVERNOR'S  PROCLAMATION. 

PROMISE. 

1.  There  is  no  distinction  in  law  between  a  promise  to  pay  the  debt  of 

another  and  a  promise  to  do  some  collateral  act  by  which  such  payment 
might  be  obtained.  The  circuity  of  the  process  does  not  vary  the 
principle.  Scott  v.  Thomas,  58 

2.  Where  the  moving  consideration  for  the  promise  is  the  liability  of  a 

third  person,  there  the  promise  must  be  in  writing;  but  if  there  is  a 
new  consideration  moving  from  the  promisee  to  the  promisor,  there  the 
superadded  consideration  makes  it  a  new  agreement  which  is  not 
within  the  statute.  Ibid.,  58 

3.  A  parol  promise  to  pay  the  debt  of  another  is  void.    Ibid.,  58 

4.  Where  a  plaintiff  relies  upon  a  new  promise  made  after  the  defendant 

became  of  age — the  original  contract,  having  been  made  during  infancy 
— he  should  declare  on  the  new  contract.  Bliss  et  al.  v.  Perry  man, 

484 

PROMISSORY  NOTES. 

1.  The  assignor  of  a' negotiable  instrument,  assigned  after  it  became  due, 

under  the  statute  relative  to  promissory  notes,  etc.,  is  liable  to  his  as- 
signee, where  the  maker  of  the  instrument  is  insolvent  at  the  time  of 
the  assignment,  and  so  continues  up  to  the  time  of  action  brought, 
although  no  suit  has  been  prosecuted  against  the  maker.  Humphreys 
v.  Collier  et  al.,  47 

2.  The  bills  issued  by  the  old  State  Bank  of  Illinois  were  "  bills  of  credit" 

707 


668  INDEX. 

within  the  meaning  of  the  Constitution  of  the  United  States:  and  a 
note  given  in  consideration  of  such  bills  is  void,  and  can  not  be  collected 
bylaw.  Linn  v.  The  State  Hank  of  Illinois,  87 

3.  The  consideration  of  a  negotiable  note  can  not  be  impeached  in  the  hands 

of  an  innocent  assignee,  who  received  the  note  before  it  became  due. 
Woods  v.  Hynes,  103 

4.  The  fraud  which  will  vitiate  a  note  in  the  hands  of  an  innocent  assignee 

must  be  in  obtaining  the  making  or  executing  of  the  note.  Fraud  in 
relation  to  the  consideration,  or  in  the  contract  upon  which  the  note  is 
given,  is  not  sufficient.  Ibid.,  103 

5.  The  giving  of  a  note  is  no  payment.     Dedman  v.  Williams,  154 

6.  A  note  expressing  on  its  face  to  have  been  given  for  value  received,  im- 

ports a  sufficient  consideration,  and  leaves  it  open  to  be  impeached  by 
the  defendant.  Stacker  etal.  v.  Watson,  207 

7.  A  note  is  prima  facie  evidence  of  a  consideration,  although  it  does  not 

express  on  its  face  that  it  is  given  for  value  received;  and  when  a  want 
or  failure  of  consideration  is  relied  on,  it  must  be  pleaded  and  proved 
by  the  party  alleging  it.  Ibid.,  207 

7.  The  possession  of  a  note  or  bond  is  prima  facie  evidence  of  the  legal 
title  to  the  instrument,  and  of  a  right  to  use  the  name  of  the  person  to 
whom  it  is  payable.     Ransomv.  Jones,  291 

8.  Where  there  has  been  a  transfer  of  a  bond  or  instrument  without  a  reg- 
ular assignment  to  authorize  the  assignee  to  institute  a  suit  in  his  own 
name,  courts  will  always  permit  the  use  of  the  name  of  the  person  to 
whom  it  is  made  payable,  without  an  express  power  to  do  so.     Indeed, 
courts  are  bound  to  protect  the  interest  of  the  holder  and  prevent  even 
a  release  of  the  debt  after  such  transfer,  or  a  discharge  of  the  action  by 
the  person  in  whose  name  it  has  been  commenced.     Ibid.,  291 

9.  A  note  payable  in  mason  work  is  not  assignable  so  as  to  enable  the  as- 

signee to  plead  it  as  a  set-off  to  an  action  against  him,  or  to  enable  him 
to  institute  a  suit  thereon  in  his  own  name.  Ibid.,  291 

10.  Where  the  declaration  averred  that  the  defendants  made  their  promis- 
sory note  to  the  plaintiff,  Alexander  Tappan,  and  the  note  produced  in 
evidence,  was  made  payable  to  A.  H.  Tappan,  and  the  plaintiff  proved 
by  parol,  that  Alexander  and  A.  H.  was  one  and  the  same  person,  and 
the  holder  of  the  note:  Held,  that  the  proof  sustained  the  declaration. 
Peytor.  et  al.  v.  Tappan,  388 

11.  No  principle  is  better  settled,  than  that  the  laws  of  the  country  where 
the  contract  is  made,  shall  govern  its  construction,  and  determine  its 
validity.     Stacy  v.  Baker,  417 

12.  Where  a  note  was  made  in  Kentucky,  the  laws  of  which  State  allow  the 
same  defense  to  be  made  against  a  note  in  the  hands  of  an  assignee, 
whether  assigned  before  or  after  it  becomes  due,  that  may  be  made 
against  the  original  holder  or  payee,  and  suit  was  brought  upon  said 
note  in  Illinois  against  the  administrator  of  the  maker,   who  had 
removed  to  this  State:  Held,  that  the  laws  of  Kentucky  at  the  time  of 
the  making  and  assignment  of  tbe  note,  should  be  the  rule  of  decision, 
and  the  defendant  might  avail  himself  of  any  defense  that  he  could  have 
availed  himself  of,  if  the  suit  had  been  prosecuted  in  Kentucky.    Ibid., 

417 

13.  The  existing  laws  of  a  State,  at  the  time  of  the  making  and  assignment 
of  a  promissory  note,  form  a  portion  of  the  contract,  and  the  liability 
of  the  maker  should  be  determined  under  them.     Ibid.,  417 

14.  The  admission  of  an  assignor  of  a  promissory  note,  as  a  witness,  to 
prove  the  time  of  assignment,  is  contrary  to  the  rules  of  evidence. 
Ibid.,  417 

15.  In  an  action  brought  by  P.,  as  assignee  of  M.,  to  recover  the  amount  of 
a  promissory  note  made  by  B.,  the  Court  gave  the  following  instructions 
to  the  jury: 

"  That  if  the  jury  believe  from  the  evidence  that  B.  and  M.  made  a  lump- 
ing trade;  that  if  B.  agreed  to  give  $615  for  M.'s  interest,  whatever  it 
708 


INDEX.  669 

might  be,  (meaning  the  interest  in  the  partnership  concern  in  which 
they  were  both  interested,  and  to  which  the  making  of  the  note  related,) 
and  was  not  deceived  or  imposed  on  by  any  false  and  fraudulent  repre- 
sentations or  concealments,  then  made  by  M.,  then  the  note  is  founded 
on  a  good  consideration,  and  is  binding  on  B. :"  Held,  that  the  instruc- 
tion was  correct.  Peck  v.  Bog g ess,  281 

16.  In  an  action  against  the  maker  of  a  note  or  the  acceptor  of  a  bill  of  ex- 
change, payable  at  a  specified  place,  it  is  not  necessary  to  aver  or  prove 
a  demand  of  payment  at  such  place.    Butterfield  v.  Kinzie,  445 

17.  There  can  be  no  impropriety  in  including  several  notes  in  one  count  in 
a  declaration  where  each  of  the  notes  is  of  precisely  the  same  descrip- 
tion.    Godfrey  et  al.  v.  Buckmaster,  447 

18.  In  an  action  upon  a  promissory  note  against  the  maker,  the  declaration' 
described  the  note  as  made  by  William  Linn.     The  note  produced  in 
evidence  was  signed  "  Wm.  Linn:"    Held,  there  was  no  variance,  and 
that  the  proof  was  sufficient.     Linn  v.  Buckingham  et  al.,  451 

19.  A  defendant  can  not  deny  the  execution  of  a  promissory  note,  upon 
which  he  is  sued,  or  dispute  its  genuineness  unless  he  verify  his  denial 
by  affidavit.     Ibid.,  451 

20.  A_  County  Treasurer  has  no  authority  whatever  to  take  a  note  payable  to 
himself  as  Treasurer;  nor  has  he  any  authority  to  assign  or  transfer  such 
a  note.     Berry  v.  Hamby,  468 

21.  A  suit  can  not  be  maintained  in  the  name  of  a  County  Treasurer.     Sed 
quere. 

Quere,  Whether  an  action  in  the  name  of  the  County  can  be  maintained  upon 
a  note  payable  to  the  County  Treasurer.     Ibid.,  468 

22.  Where  there  are  several  indorsers  or  assignors  of  a  note,  who  indorse 
the  same  consecutively,  the  liability  of  each  is  several  and  not  joint. 
Brown  v.  Knoiver  et  al.,  469 

23.  The  liability  of  an  assignor  of  a  note,  under  the  statute  of  this  State,  is 
contingent,  and  the  holder  is  required  to  show  due  diligence  to  obtain 
payment  from  the  maker  before  he  can  resort  to  the  assignor.     Ibid., 

469 

24.  In  an  action  upon  a  promissory  note,  given  for  a  town  lot  and  assigned 
after  it  became  due,  the  maker,  to  show  that  the  consideration  had 
failed,  offered  to  prove  that  the  payees  of  the  note,  as  proprietors  of 
the  town  in  which  the  lot  was  situated,  publicly  proclaimed  on  the  day 
of  the  sale  of  the  lot  that  they  would   build  a  store-house  in  the  town, 
two  stories  high,  forty  by  twenty-four  feet,  by  the  1st  of  August  follow- 
ing the  day  of  sale,  and  that  they  would  construct  a  bridge  across  the 
Big  Macoupin,  in  the  said  town ;  but  that  they  had  failed  so  to  do :  Held, 
that  it  would  be  no  defense  to  the  note  and  that  such  proof  would  not 
be  evidence  of  fraud  unless  it  was  also  shown  that  the  proprietors  of 
said  town  made  such  declarations  deceitfully.     Miller  v.  Hotcell,     499 

25.  In  an  action  by  the  old  State  Bank  of    Illinois  upon  a  promissory  note, 
given  in  satisfaction  of  two  judgments  recovered  upon  promissory 
notes  executed  to  said  bank  in  consideration  of  bills  of  said  bank,  which 
had  been  declared  by  the  Supreme  Court  to  be  bill,?  of  credit  emitted  by 
the  State,  in  contravention  of  the  Constitution  of  the  United  States,  the 
defendants  offered  to  show  the  consideration  of  the  judgments  in  bar  of 
the  action  :  Held,  that  the  evidence  was  inadmissible,  and  that  the  va- 
lidity of  the  judgments  could  not  be  impeached  in  such  action.     Mitchell 
et  al.  v.  State  Bank  of  Illinois,  5'26 

26.  A  judgment  can  not  be  impeached  in  an  action  upon  a  note  given  in  sat- 
isfaction of  such  judgment.     A  judgment  implies  verity  in  itself.   Ibid., 

526 

27.  At  law,  a  moiety,  or  any  other  portion  of  a  promissory  note,  can  not  be 
so  assigned  as  to  enable  the  assignee  to  bring  an  action  in  his  own  name, 
for  his  portion  of  the  note.     Miller  v.  Bledfoe  et  al.,  530 

28.  In  order  to  enable  an  indorsee  or  assignee  of  a  note  to  bring  an  action 
in  his  own  name,  the  whole  interest  in  the  note  must  be  assigned  to 
him.    Ibid.,  530 

709 


670  INDEX. 

29.  Where  a  note  was  made  payable  to  B.  and  T.,  and  T.  indorsed  and  as- 
signed his  interest  in  the  note  to  B.,  and  an  action  was  instituted  on 
the  note  in  the  name  of  B.  and  T.,  for  the  use  of  B.  :  Held,  that 
the  action  was  correctly  brought ;  and  that  B.  and  T.  were  the  legal 
holders  of  the  note,  though  the  interest  of  the  assignee  of  the  moiety 
would  be  protected  in  a  court  of  law  ;  and  that  the  indorsement  of  T. 
upon  the  note  could  be  regarded  only  as  a  private  memorandum  be- 
tween the  payees.  Ibid.,  530 

80.  At  common  law,  in  an  action  by  S.  W.  and  H.  L.,  on^  a  promissory  note 
made  payable  to  W.  and  L.,  without  mentioning  their  Christian  names, 
the  presumption  would  be  that  the  plaintiffs,  being  holders  of  the  note, 
were  the  persons  to  whom  the  promise  was  made  until  the  contrary  was 
shown.  Hollenback  v.  Williams  et  aL,  544 

31.  Under  the  statute  of  March  2,  1839,  in  a  suit  on  a  promissory  note,  it  is 
not  necessary  for  the  holders  to  show  that  they  are  the  persons  described 
in  the  note  as  payees,  by  their  surnames,  where  the  general  issue  is 
pleaded.    Ibid.,  544 

32.  Setnble,  That  the  rule  is  the  same,  whether  the  action  was  commenced 
and  plea  filed  before  or  since  the  passage  of  the  act.    Ibid.,  544 

33.  In  an  action  by  an  indorsee  or  payee  against  the  maker,  upon  a  promis- 
sory note  payable  at  a  specified  time  and  place,  it  is  not  necessary  to 
aver  in  the  declaration,  or  prove  on  the  trial,  a  presentment  of  the  note 
for  payment.     Armstrong  v.  Caldu-ell,  546 

34.  In  an  action  against  the  makers,  upon  a  promissory  note  executed  in  a 
co-partnership  name,  one  of  the  defendants — the  general  issue  being 
pleaded — offered  to  read  in  evidence,  on  the  trial,  a  notice  of  the  disso- 
lution of  the  co-partnership,  published  in  the  Galena  Gazette,  a  public 
newspaper,  long  before  the  execution  of  the  note.     He  afterward  of- 
fered to  prove  by  a  witness,  that  long  before  the  making  of  the  note  in 
question,  there  was  no  co-partnership  existing  between  the  defendants, 
and  that  the  plaintiffs  had  notice  thereof  before,  and  at  the  time  of  the 
making  of  the  promissory  note  declared  on,  which  the  Court  rejected  : 
Held,  that  the  evidence  was  admissible.     Whitesides  v.  Lee  et  aL,    548 

35.  Quere,  Whether  this  would  be  the  decision,  if  the  suit  had  been  com- 
menced and  the  plea  filed  subsequently  to  the  passage  of  the  act  of 
March  2, 1839,  "  regulating  evidence  in  certain  cases.'1''     Ibid.,  548 

36.  Under  the  statute  of  Illinois  in  relation  to  promissory  notes,  it  is  unnec- 
essary to  give  notice  of  the  non-payment  of  a  note,  in  order  to  charge 
the  assignor  or  indorser.     State  Bank  of  Illinois  v.  Hawley,  580 

37.  The  fraud  which  will  vitiate  a  negotiable  instrument  in  the  hands  of  an 
assignee  who  has  no  notice  of  the  fraud,  must  be  in  obtaining  the  mak- 
ing or  executing  of  the  note.    Fraud  in  relation  to  the  consideration,  is 
not  sufficient.     Mulford  v.  Shepard,  583 

38.  Before  the  consideration  of  a  negotiable  note  can  be  impeached  in  the 
hands  of  a  bona  fide  indorsee,  the  defendant  must  show  that  the  note 
was  indorsed  after  it  became  due,  or  that  the  indorsee  had  notice  of  the 
want  of  consideration  at  the  time  he  received  it,  or  that  there  wasfraud 
in  obtaining  the  making  of  the  note.    Ibid.,  583 

39.  A  misrepresentation  on  the  sale  of  a  tract  of  land  of  the  quantity  of 
prairie  broken,  and  a  failure  on  the  part  of  the  seller  to  inform  the  pur- 
chaser that  there  was  an  unexpired  lease  of  a  portion  of  the  premises  to 
a  tenant,  does  not  constitute  a  fraud  so  as  to  bar  a  recovery  on  a  note 
given  for  the  purchase  of  the  same.     Such  facts  might,  perhaps,  be  mat- 
ter of  defense  to  the  note  in  the  hands  of  the  original  payee,  to  the  ex- 
tent of  the  depreciation,  on  those  accounts,  in  the  value  of  the  property 
sold.    Ibid.,  583 

40.  Semble,  That  in  an  action  on  a  promissory  note  by  the  indorsee  against 
the  maker,  the  presumption  of  law  is  that  the  note  was  assigned  before 
it  became  due,  until  the  contrary  is  shown.    Ibid.,  583 

See  CONTINUANCE,  1;  CONSIDERATION,  3,  9;  JUSTICES  OF  THE  PEACE, 
13;  MORTGAGE,  2. 

710 


INDEX.  671 

PUBLIC  ACTS. 

1.  Statutes  defining  the  boundaries  of  counties  are  public  acts,  and  courts 
are  bound  judicially  to  take  notice  of  them.  In  an  action  of  trespass 
quare  clausum  fregit,  proof  that  the  trespass  was  committed  upon  the 
premises  described  in  the  declaration,  by  the  number  of  the  section, 
township  and  range,  (the  said  premises  being  in  the  proper  county)  is 
sufficient  without  evidence  that  the  premises  are  situated  in  the  county 
where  the  action  is  brought.  Ross  et  al.  v.  Keddick,  73 

See  GOVERNOR'S  PROCLAMATION. 

PUBLIC  LANDS. 

1.  The  pre-emption  laws  of  the  U.  S.  can  not  be  construed  as  invitations  to 

settle  upon  the  public  lands.     Carson  v.  Clark,  113 

2.  The  certificate  of  the  Register  of  a  Land  Office,  ofc  the  purchase  of  a  por- 

tion of  the  public  lands  of  the  U.  S.,  is,  under  the  statute  of  this  State, 
of  as  high  a  character  in  point  of  evidence  as  a  patent,  in  an  action  of 
ejectment,  and  is  to  be  governed  by  the  same  rules  of  interpretation. 
The  elder  certificate  is  conclusive  against  a  subsequent  one.  Bruner  v. 
Manlove  et  al.,  156 

3.  A  promise  made  by  a  vendee  of  public  lands,  after  the  purchase  of  the 

same  of  the  United  States,  to  pay  for  improvements  made  upon  the 
same  previous  to  the  purchase,  is  without  consideration  and  void.  Hut- 
son  v.  Overturf,  170 

4.  The  statute  of  1831,  in  relation  to  the  sale  of  improvements  upon  public 

lands,  has  no  application  to  a  promise  made  by  a  purchaser  of  a  portion 
of  such  lands,  after  such  purchase,  to  pay  for  improvements  made  upon 
the  same  while  it  belonged  to  the  United  States.  It  applies  only  to  con- 
tracts respecting  the  sale  of  improvements,  which  at  the  time  the  con- 
tract is  entered  into  are  on  the  land  owned  by  the  government.  Ibid., 

170 

5.  An  agreement  to  attend  a  public  land  sale  of  the  United  States,  and 

purchase  a  tract  of  land,  is  not  fraudulent  or  against  the  laws  of  the 
United  States.  Pearsons  v.  Lee.  193 

6.  The  decision  of  the  Register  and  Receiver  of  a  Land  Office,  like  that  of 
all  other  tribunals  where  no  appeal  is  allowed,  is  final  and  conclusive, 
upon  all  the  facts  submitted  by  law  to  their  examination  and  decision. 
Their  determination  in  relation  to  the  right  of  pre-emption  to  a  tract  of 
land  within  their  jurisdiction,  is  conclusive.    McConnell  v.  Wilcoir, 

344 

7.  There  can  be  neither  a  reservation  nor  an  appropriation  of  the  public 

domain  for  any  purpose  whatever,  without  express  authority  of  law. 
Ibid.,  344 

8.  Neither  the  President,  nor  any  officer  of  the  government,  have  power 
to  make  such  appropriation  or  reservation  without  such  authority. 
Ibid.,  344 

9.  The  acts  of  the  Secretary  of  War  and  the  Commissioner  of  the  General 

Land  Office,  in  making  a  reservation  of  Fort  Dearborn,  or  the  land  upon 
which  it  was  situated,  were  unauthorized  by  law,  and  void.  Ibid., 

844 

10.  The  Northwestern  Territory  was  ceded  by  Virginia  to  the  United  States 
as  a  common  fund  for  the  use  and  benefit  of  all  the  States,  according  to 
their  usual  respective  proportions  in  the  general  charge  and  expendi- 
ture, and  should  be  faithfully  and  bona  jftde  disposed  of,  for  that  pur- 
pose, and  for  no  other  use  or  purpose  whatever.     Ibid.,  344 

11.  The  assent  of  a  State  legislature  is  necessary  to  the  erection  by  tJie 
United  States  of  forte  and  permanent  garrisons  within  the  boundaries 
of  a  State.    Ibid.,  344 

12.  The  term  "appropriation,"  used   in  the  pre-emption  laws,  means  an 
application  of  lands  to  some  specific  use  or  purpose,  by  virtue  of  law, 
and  not  by  any  other  power.    Ibid.,  ,    344 

711 


672  INDEX. 

13.  An  action  of  ejectment  can  be  maintained  against  a  military  officer,  in 
the  occupation  of  lands,  as  such.     Ibid.,  344 

14.  The  ^re-emption  laws  grant  to  the  pre-emptioner  an  estate  in  land  upon 
conditions,  which  become  absolute  upon  the  performance  of  tli<«e  con- 
ditions.   Ibid.,  344 

15.  The  law  of  thn  State  where  the  land  is  situated  is  to  govern  both  as  to 
the  form  of  the  remedy  and  the  evidence  of  title.     Ibid.,  344 

16.  In   regard  to  municipal  rights  and  obligations,  the  government,  as  a 
moral  being,  must  be,  in  contracting,  subject,  in  the  absence  of  a  law 
of  Congress  in  relation  thereto,  to  the  laws  of  the  States,  and  the  same 
principles  and  rides  of  interpretation  of  contracts  and  acts  growing  out 
of  them,  as  prevails  between  individuals,  must  be  applicable  to  it. 
Ibid.,  344 

17.  The  character  of  a  general  law,  and  the  force,  effect,  and  application 
thereof,  are  not  to  be  determined  by  the  character  of  the  parties  to  the 
action.     If  the  act  of  the  legislature  making  a  Register's  certificate  of 
the  purchase  of  a  tract  of  land  of  the  U.  8.,  evidence  of  title,  is  valid  as 
a  rule  of  decision  between  the  citizens  of  the  State  of  Illinois,  it  is  also 
valid  between  a  citizen  and  the  U.  S.     I  bid.,  344 

18.  The  act  of  the  legislature  of  the  State  of  Illinois,  making  the  Register's 
certificate  of  the  purchase  of  land  at  the  U.  S.  Land  Offices,  evidence  of 
title,  does  not  conflict  with  the  Ordinance  of  1787.     I  bid.,  344 

19.  The  act  of  Congress  of  1830,  provided  "  That  the  right  of  pre-emption  un- 
der this  act  does  not  extend  to  any  lands  which  are  reserved  from  sale 
by  an  act  of  Congress,  or  by  order  of  the  President,  or  which  may  have 
been   appropriated  for  any  purpose  whatever,  or  for  the  use  of  the 
United  States,  or  either  of  the  States  in  which  they  may  be  situated." 
The  Proclamation  of  the  President  advertising  the  lands  for  sale,  stated 
that  "  The  lands  reserved  by  late  for  the  use  of  schools,  and  for  other  pur- 
poses, will  Vie  excluded  from  sale."     The  Commissioner  of  the  General 
Land  Office  wrote  a  letter  to  the  Secretary  of  War,   stating  that  the 
whole  of  Fractional  Section  10,  was  reserved  for  military  purposes. 
This  letter  was  in  reply  to  a  request  from  the  Indian  Agent  at  Chicago, 
to  the  Secretary  of  War,  requesting  that  Section  10  might  be  reserved 
for  the  Indian  Department,  and  by  the  latter  transmitted  to  the  Secre- 
tary of  War.     Held,  that  there  was  no  legal  reservation  of  Section  10. 
Held,  also,  that  under  a  fair  construction  of  the  aforesaid  act,  and  the 
act  authorizing  the  President  to  reserve  such  lands  as  he  may  deem  nec- 
essary for  military  posts;  lands  not  expressly  reserved  in  the  Proclama- 
tion of  the  President,  were  subject  to  sale,  though  they  had  previously 
been  reserved  by  law.    Ibid.,  344 

20.  The  admitting  of  a  portion  of  Section  10,  the  whole  of  which  the  Com- 
missioner of  the  General  Land  Office  had  declared  was  reserved  for 
military  purposes,  to  be  entered  by  a  pre-emptor,  is  a  declaration  on  the 
part  of  the  government  that  there  was  no  legal  reservation.   Ibid., 

344 

21.  A  patent  is  not  the  title  itself ,  but  the  evidence  thereof .    Ibid.,         344 

22.  In  a  republic,  the  title  to  land  derived  from  the  government,  springs 
from  the  law.     Ibid.,  844 

23.  The  certificate  of  a  Register  of  a  Land  Office,  of  the  purchase  of  a  tract 
of  land  from  the  U.  S.,  is  of  as  high  authority  as  a  patent.     Ibid.,    344 

24.  The  words  "  better,  legal,  paramount  title,"  used  in  the  act  of  the 
legislature,  making  the  certificates  of  the  Land  Officers  evidence,  do  not 
mean  the  title  of  the  U.  S. ;  but  they  refer  to  cases  where  the  U.  S.  had 
not  the  title  at  the  time  of  the  sale  and  issuing  of  the  certificate.    Ibid. , 

344 

25.  The  United  States  could  not  be  a  defendant  in  a  State  Court  to  any  ac- 
tion whatever,  such  Court  having  no  jurisdiction  over  her;  and  consent 
could  not  give  it.    And  although  it  is  certainly  true  that  the  tenant,  in 
all  actions  of  ejectment,  may  defend  himself  by  showing  the  title  of  his 
landlord,  it  does  not  follow  that  the  party,  who  could  not  be  a  defend- 
ant for  want  of  jurisdiction  in  the  Court  over  him,  may  defend  himself 

7-2 


INDEX.  6T3 

in  such  case  in  the  name  of  a  person,  who,  upon  no  reasonable  supposi- 
tion, could  be  considered  as  standing1  in  the  relation  of  a  tenant.  1  bid. , 

344 
26.  The  certificate  of  a  Land  Officer  is  evidence.     Turney  v.  Goodman,    184 

See  EVIDENCE,  4;  IMPROVEMENTS;  TRESPASS. 

QUO  WARRANTO. 

See  the  People  of  the  State  of  Illinois.  Ex  relatione  Charles  R.  Mathenji, 
appellants,  v.  Mordecai  Mobley,  appellee,  215 

REAL  ESTATE. 

1.  A  special  power  granted  by  statute,  affecting  the  rights  of  individuals, 
and  which  divests  the  title  to  real  estate,  ought  to  be  strictly  pursued, 
and  should  so  appear  on  the  face  of  the  proceedings.  Smith  et  al.  v. 
Hileman,  323 

See  ESTATES. 

RECEIPT. 
See  EVIDENCE,  22,  23. 

RECITALS. 
See  DEED,  4;  EVIDENCE  8;  REFEREES. 

RECOGNIZANCE. 

1.  It  is  error  to  enter  up  final  judgment  upon  a  recognizance,  upon  the 
recognizer's  failing  .to  appear  agreeably  to  the  terms  of  their  recog- 
nizance. Before  final  judgment  can  be  entered,  a  scire  facias  must 
issue  against  them  to  show  cause  why  judgment  and  execution  should 
not  be  had,  or  an  action  must  be  instituted  on  the  bond  to  recover  the 
penalty.  Pinckard  et  al.  v.  The  People,  187 

RECORDS. 

1.  A  mistake  in  making  up  the  record  of  a  cause  may  be  corrected  at  a  term 

subsequent  to  that  at  which  the  same  was  disposed  of.  Mitcheltree  v. 
Sparks,  122 

2.  The  name  "  Nathan"  was  erased  and  "Matthew  "  inserted,  in  a  record 

at  a  subsequent  term.     Ibid.,  122 

8.  The  reasons  filed  by  a  party,  as  the  foundation  for  a  motion  in  the  Cir- 
cuit Court,  do  not  thereby  become  a  part  of  the  record.  To  make  them 
a  part  of  the  record,  they  should  be  embodied  in  a  bill  of  exceptions. 
Vanlandinghamv.  Felloirs  et  al.,  232 

4.  The  act  of   Congress  prescribing  the  mode  of  authenticating  the  acts  of 

the  several  legislatures,  declares  that  such  acts  shall  be  authenticated  by 
having  the  seal  of  their  respective  States  affixed  thereto.  An  act  certi- 
fied by  the  Secretary  of  State,  to  which  is  appended  a  certificate  of  the 
Governor,  with  the  seal  of  State  affixed,  certifying  to  the  official  char- 
acter of  the  person  signing  himself  as  Secretary,  and  that  full  faith  and 
credit  are  to  be  given  to  his  oificial  acts,  is  not  a  compliance  with  the 
act  of  Congress.  Lafayette  Bunk  of  Cincinnati  v.  Stone,  424 

5.  The  record  of  a  cause  should  present  the  proceedings  in  the  order  of  time 

in  which  they  transpired.     Sloo  v.  The  State  Bank  of  Illinois,         428 

6.  In  a  suit  for  a  critn.  con.,  a  m  irriago  license  issued  in  the  State  of  Ten- 

nessee, with  a  certificate  indorsed  thereon  by  a  justice  of  the  peace,  that 
ho  hid  solemnized  the  marrisige.  was  admitted  in  evidence,  the  official 
character  of  the  officer  granting  the  license,  and  also  that  of  the  justice 
of  the  peace,  being  certified  by  the  clerk,  the  keeper  of  the  records, 
under  his  oificial  seal,  and  the  presiding  justice  having  certified  to  the 

713 


674  INDEX. 

authority  and  official  character  of  the  clerk:  Held,  that  the  license  and 
cert  ideates  were  properly  admitted.  King  v.  Dale,  513 

7.  Where  the  record  of  a  cause  stated  that  "  the  defendant  filed  his  plea, 

and  the  plaintiff  joined  thereto,"  but  the  plea  and  joinder  were  not  on 
file,  and  copies  of  the  same  were  not  given  in  the  record:  Held,  that  the 
inference  was,  that  the  issue  was  an  issue  to  the  country.  Archer  v. 
Spillman  et  al.,  553 

8.  The  law  is  well  settled  that  in  order  to  justify  courts  not  of  record  in  tak- 

ing cognizance  of  a  cause,  their  jurisdiction  must  affirmatively  appear. 
Trader  v.  McKee,  558 

9.  In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice  of  the  peace  of 

another  State,  to  be  received  in  evidence  in  this  State,  it  must  be  show  n 
that  by  the  laws  of  the  State  where  the  judgment  was  rendered,  the  jus- 
tice had  jurisdiction  over  the  subject-matter  upon  which  he  attempted 
to  adjudicate.  Ibid.,  558 

10.  A  transcript  of  a  judgment  of  a  justice  of  the  peace  of  Wayne  county,  in 
Indiana,  purported  to  be  certified  by  his  successor  in  office,  and  the  clerk 
of  the  Circuit  court  of  Wayne  county  certified  as  to  the  capacity  of  said 
successor  in  office,  and  the  judge  of  the  sixth  Judicial  Circuit  in  Indiana, 
certified  as  to  the  capacity  of  the  said  clerk:  Held,  that  in  the  absence 
of  proof  that  the  statute  of  Indiana  authorized  the  clerk  to  give  such 
certificate,  he  could  not  give  a  certificate  in  such  a  case,  that  would  be 
evidence  in  a  court  of  justice.     Ibid.,  558 

11.  Where  papers  which  are  lodged  in  the  cleik's  office,  but  are  not  marked 
filed,  are  incorporated  into  a  record  from  the  Court  below,  a  writ  of 
certiorari  may  be  issued  to  the  clerk,  to  send  up  a  true  record.    Holmes 
v.  Parker  et  al.,  567 

12.  Where  a  bill  of  exceptions  signed  and  sealed  by  the  judge,  and  an  ap- 
peal bond,  were  lodged  in  the  clerk's  office,  but  not  marked  filed:  Held, 
that  they  were  not  part  of  the  record  in  the  cause,  and  that  the  appeal 
must  be  dismissed.    Ibid.,  567 

See  RIGHT  OF  PKOPEUTY,  7. 

RECORDING  OF  DEEDS. 

1.  The  section  of  the  statute  of  frauds  and  perjuries,  which  declares  void  as 
to  creditors  and  purchasers,  all  conveyances  of  goods  and  chattels  made 
upon  considerations  not  deemed  valuable  in  law,  unless  possession  shall 
remain  with  the  donee,  or  unless  the  conveyances  be  recorded,  has  no 
relation  to  a  deed  made  upon  a  valuable  consideration.  The  statute 
applies  to  deeds  for  personal  property  made  upon  good  consideration 
only,  as  distinguished  from  valuable.  Kitchell  v.  Braiton,  300 

REFEREES. 

1.  Where  a  cause  has  been  referred  by  a  rule  of  Court,  it  is  incumbent  on 
the  party  objecting  to  the  report  of  the  referees  to  show  by  affidavit  that 
some  irregularity  has  occurred.  In  the  absence  of  such  proof  their  pro- 
ceedings will  be  deemed  to  have  been  regular.  It  is  to  be  presumed 
that  the  requisite  forms  have  been  observed  in  a  case  like  the  present, 
without  a  recital.  Vanlandingham  v.  Lowery,  240 

REGISTER  AND  RECEIVER. 
See  EVIDENCE,  4;  PUBLIC  LANDS. 

REMEDY. 
See  FEES. 

REMOVAL  FROM  OFFICE. 
See  CLEBK. 

714 


INDEX.  675 

RENT. 
See  LANDLORD  AND  TENANT;  USE  AND  OCCUPATION. 

REPEAL  OF  STATUTES. 
See  OFFICE  AND  OFFICER. 

RES  ADJUDICATA. 
See  JUSTICES  OF  THE  PEACE,  3, 17, 18,  19. 

RESERVATION. 
See  PUBLIC  LAND. 

RETURN. 
See  SERVICE  OF  PROCESS. 

RIVERS. 
See  NAVIGABLE  STREAMS. 

RIGHT  OF  PROPERTY. 

1.  In  a  trial  of  the  right  of  property  the  defendant  in  execution  is  a  compe- 

tent witness  for  the  claimant.  The  interest  which  disqualifies  must  be 
in  favor  of  the  party  calling1  the  witness.  Clifton  v.  Bogardus,  32 

2.  The  statute  does  not  require  the  claimant  of  property  taken  on  execution 

to  state  on  whose  execution  the  levy  had  been  made,  in  the  notice  he 
serves.  Notice  to  the  officer  that  he  claims  the  goods  levied  on,  intends 
to  prosecute  his  claim,  and  forbids  the  sale,  is  sufficient.  Pearce  et  al., 
v.  Swan,  266 

3.  Surplusage  can  not  vitiate  a  notice.     Ibid.,  266 

4.  Objections  in  the  nature  of  a  plea  in  abatement  must  be  made  in  the  first 

instance.  It  is  too  late  to  make  them  on  appeal.  An  appeal  from  the 
decision  of  a  jury,  upon  the  trial  of  the  right  to  property  levied  on  exe- 
cution, must  be  taken  at  the  trial,  and  the  appeal  bond  executed  before 
the  Court  is  dissolved.  An  appeal  bond  filed  the  day  after  the  trial  is 
not  sufficient.  Ibid.,  266 

5.  When  the  process  by  which  a  court  obtains  jurisdiction  of  a  cause  is  ir- 

regular, if  no  objection  is  made,  the  irregularity  is  waived.    Ibid., 

268 

6.  If  an  appeal  be  irregularly  taken  to  the  Circuit  Court,  from  the  verdict  of 

a  jury  on  the  trial  of  the  right  of  property  before  a  justice,  ete.,  and  the 
appellee  appears  in  the  Circuit  Court,  he  waives  all  objections  to  the  ir- 
regularity of  the  appeal.  Ibid.,  266 

7.  Where  an  attachment  was  levied  on  goods  in  the  possession  of  S.,  and 

upon  a  trial  of  the  right  of  property  between  S.  and  the  attaching 
creditors,  the  property  was  found  to  be  subject  to  the  attachment,  and 
S.  gave  security  to  the  sheriff  who  attached  them,  for  their  return,  but 
subsequently  put  them  into  the  possession  of  A.,  who  sold  them,  and 
who  was  thereupon  summoned  as  garnishee  in  the  attachment  suit: 
Held,  that  in  determining  whether  A.  was  liable  as  garnishee,  the  rec- 
ord of  the  trial  of  the  right  of  property  between  the  creditors  in  the 
attachment  and  S.,  was  properly  admitted,  and  that  it  was  conclusive 
as  to  the  ownership  of  the  property.  Arenz  v.  Reihle  et  al.,  340 

8.  A  judgment  binds  parties  and  privies.     Ibid.,  340 
Semble,  That  a  trial  of  the  right  of  property,  under  the  statute,  is  conclu- 
sive between  the  parties  and  privies.     Ibid. ,  340 

9.  A  landlord  who  has  distrained  upon  the  goods  of  his  tenant  has  a  suffi- 

cient interest  in  them  to  enable  him  to  be  the  claimant  of  the  same  on  a 
trial  of  the  right  of  property,  if  they  are  subsequently  taken  in  execu- 
tion. Grimsley  et  al.  v.  Klein,  343 

715 


670  INDEX. 

10.  Semble,  That  any  person  having  an  interest  in  goods  and  chattels  may 
be  a  claimant  of  the  same  and  have  a  trial  of  the  right  of  property  be- 
tween the  creditor  in  an  execution  levied  on  the  same  and  himself. 
Ibid..  343 

11.  A  motion  to  dismiss  an  appeal  from  the  verdict  of  a  jury  ori  the  trial  of 
the  right  of  property  before  a  sheriff,  is  addressed  to  the  discretion  of 
the  Court,  and  the  decision  of  the  Circuit  Court  on  such  motion,  can 
not  be  assigned  for  error.     Sheldon  v.  ReiMe  et  al.,  519 

12.  A  bond  on  appeal  from  the  decision  of  a  sheriff's  jury  on  the  trial  of  the 
right  of  property,  may  be  executed  by  an  attorney  in  fact.     Ibid.,    519 

13.  On  the  trial  of  the  right  of  property  levied  on  by  attachment,  the  writ 
of  attachment  and  return  thereon,  are  admissible  in  evidence.     Ibid., 

519 

14.  The  verdict  of  a  jury  in  the  Circuit  Court  on  the  trial  of  the  right  of 
property,  found  the  title  in  the  defendant  in  the  attachment:  Held, 
that  the  finding  was  sufficiently  formal  and  explicit,  as  it  negatived  the 
title  set  up  by  the  claimant.    Ibid.,  519 

SALE. 
See  FRAUDS. 

SALE  OF  LANDS. 

See  ADMINISTRATOR  AND  EXECUTOR,  13,  14,  15,  16;  CHANCERY;  CANAL 
LANDS;  COUNTY  COMMISSIONERS;  COVENANT;  DEED. 

SALE  OF  LANDS  FOE  TAXES. 
See  CONSTRUCTION  OP  STATUTES. 

SCHOOL  FUND. 

1.  The  statute  regulating  the  amount  of  interest  which  a  borrower  of  the 

School  Fund  shall  be  subject  to  pay,  as  a  penalty  for  not  paying  the  prin- 
cipal and  interest  punctually,  when  due,  does  not  authorize  a  judgment 
for  interest  in  futuro,  and  it  can  not  be  rendered  at  common  law.  Pear- 
sons v.  Hamilton,  415 

2.  Semble,  That  in  an  action,  by  scire  facias,  to  foreclose  a  mortgage  to  the 

School  Fund,  the  jury  may  assess  a  penalty  of  twenty  per  cent,  upon  the 
amount  of  principal  and  interest,  after  the  mortgage  became  due, 
although  there  is  no  averment  of  the  penalty  in  the  scire  facias.  Ibid., 

415 

3.  In  an  action  upon  a  note  given  to  the  Commissioner  of  School  Lands  of  a 

county,  for  money  loaned  of  the  School  Fund  in  order  to  entitle  the 
plaintiff  to  recover  the  twenty  per  centum  penalty  given  by  the  statute 
of  1835,  it  must  be  claimed  in  the  declaration.  Hamilton  v.  Wright, 

582 

4.  The  twenty  per  centum  interest  which  borrowers  of  the  School  Fund  are 

compelled  to  pay.  upon  a  failure  to  pay  the  principal  and  interest  punc- 
tually, is  given  as  a  penalty.  Ibid.,  582 

SCIRE  FACIAS.1 

1.  A  scire  facias  to  foreclose  a  mortgage  is  a  proceeding  in  rem,  and  not  an 

action  in  the  ordinary  acceptation  of  that  term.    Menard  v.  Marks, 

25 

2.  A  scire  facias  to  foreclose  a  mortgage  may  be  issued  before  the  expira- 

tion of  one  year  from  the  decease  of  the  mortgagor.     Ibid.,  25 

3.  The  objection  that  a  scire  facias  to  foreclose  a  mortgage  does  not  set  out 

the  mortgage  in  full,  can  not  be  taken  on  a  plea  in  abatement.     Ibid., 

25 

4.  A  mortgage  of  lands  is  not  a  note,  bond,  bill,  or  other  instrument  in 

writing  within  the  meaning  of  the  act  in  relation  to  promissory  notes; 
and  a  want  of  consideration,  or  a  failure  of  consideration  can  not  be 
pleaded  to  a  scire  facias  to  foreclose  a  mortgage.  Hall  et  al.  v.  Byrne 
et  al.,  '  140 

716 


INDEX.  677 

5.  It  is  error  to  enter  up  fiml  judgment  upon  a  recognizance  upon  the 

recognizor's  failing  to  appear  agreeably  to  the  tenns  of  their  recogni/- 
ance.  Before  final  judgment  can  be  entered,  a  scire  facias  must  issue 
against  them  to  show  cause  why  judgment  and  execution  should  not  be 
had,  or  an  action  must  be  instituted  on  the  bond  to  recover  the  penalty. 
Pinckard  et  al.  v.  The  People,  187 

6.  A  scire  facias  to  foreclose  a  mortgage  is  considered  both  as  process  and 

declaration;  and  the  proper  course  to  take  advantage  of  informalities 
is  by  demurrer.  Marshall  v.  Maury,  231 

7.  A  scire  facias  may  be  amended.     Ibid.,  231 

8.  A  scire  facias  on  a  mortgage  is  a  proceeding-  in  rem,  and  the  judgment 

should  direct  the  sale  of  the  mortgaged  premises.  The  direction  "  that 
a  special  execution  issue  therefor,  according  to  the  statute  in  such  case 
made  and  provided,"  is  not  sufficient.  Ibid.,  231 

9.  Setnble,  That  in  an  action,  by  scire  facias,  to  foreclose  a  mortgage  to  the 

School  Fund,  the  jury  may  assess  a  penalty  of  twenty  per  cent,  upon 
the  amount  of  principal  and  interest,  after  the  mortgage  became  due, 
although  there  is  no  averment  of  the  penalty  in  the  scire  facias. 
Pearsons  v.  Hamilton,  415 

10.  Where  a  mortgage  was  executed  by  G.  and  his  wife,  and  judgment  was 
rendered  upon  a  scire  facias  to  foreclose  the  same  against  G.  and  his 
wife:  Held,  that  the  wife  was  properly  made  a  defendant,  and  that  the 
judgment  was  not  erroneous.     Gilbert  et  aL  v.  M-iggord,  471 

11.  Semble,  That  in  order  to  bar  the  wife's  right  of  dower,  she  should  be 
made  a  party  defendant,  in  a  scire  facias  to  foreclose  a  mortgage. 
Ibid.,  471 

12.  Where  a  scire  facias  to  foreclose  a  mortgage  commanded  the  defend- 
ant to  answer  unto   "  Cushman,  Eaton  &   Co.,"  without  showing  or 
averring  what  persons  composed  the  said  firm:    Held,  that  the  omission 
was  fatal.    Day  v.  Cushman  et  al.,  475 

13.  A  scire  facias  to  foreclose  a  mortgage  payable  by  installments  must  state 
that  the  last  installment  has  become  due.     Ibid.,  475 

14.  In  summary  proceedings  under  a  statute,  the  provisions  of  the  statute 
must  be  strictly  complied  with.    Ibid.,  475 

SEAL. 

1.  A  summons  not  under  seal,  issued   from  the  Circuit  Court,  should  be 

quashed  on  motion  in  that  Couit.     Hannum  v.  Thompson,  238 

2.  The  want  of  a  seal  to  a  summons,  can  not  be  taken  advantage  of  after  an 

appearance.     East  on  et  al.  v.  Altum,  250 

3.  Where  a  summons  is  issued  not  under  the  seal  of  the  Court,  the  Court 

should  on  motion,  quash  it.  It  is  error  to  refuse  such  a  motion.  An- 
fflin  v.  Nott,  395 

SECURITY  FOR  COSTS. 

1.  A  non-resident  plaintiff  can  not  institute  a  suit  before  a  justice  of  the 

peace  until  he  nas  given  a  bond  for  costs,  although  he  sue  for  the  use  of 
a  resident.  The  statute  in  relation  to  costs  in  the  Circuit  Court,  in  like 
cases,  is  different.  Sewardet  al.  v.  Wilson,  192 

2.  A  security  for  costs,  entitled  "The  Same  v.  The  Same,"  is  insufficient. 

Warnock  v.  Russell,  383 

3.  It  is  no  objection  to  a  security  for  costs,  that  it  is  signed  by  a  firm  in  their 

co-partnership  name.     Linn  v.  Buckingham  el  al.,  451 

4.  Where  a  security  for  costs  was  written  upon  the  back  of  the  declaration  in 

a  cause,  but  the  title  of  the  Court  did  not  appear  in  the  same:  Held, 
that  it  was  a  sufficient  compliance  with  the  statute.  Ibid.,  451 

5.  Where  an  action  is  brought  DV  a  non-resident,  for  the  use  of  a  resident, 

no  security  for  costs  is  required.     Caton  v.  Harmon,  581 

6.  The  security  for  costs  required  of  non-residents  need  not  be  in  the  pre- 

cise words  or  form  given  in  the  statute.     KetteUe  v.  Wardell,         592 

7.  A  security  for  costs  may  be  signed  in  the  name  of  a  firm.    Ibid.,         592 

717 


678  INDEX. 

SET-OFF. 

1.  A  judgment  recovered  after  action  brought,  and  after  plea  pleaded,  can 

not  be  set  off  against  the  plaintiff's  demand.     Irvin  et  at.  v.  Wright, 

135 

2.  The  construction  of  the  English  statute  of  set-off,  and  of  §  17  of  our 

practice  act,  should  be  the  same  in  relation  to  the  time  at  which  the  set- 
off  should  exist.  Ibid.,  135 
8.  A  defendant  is  not  bound  to  set  off  his  debt  against  the  plaintiff's  de- 
mand except  in  suits  before  a  justice  of  the  peace.  Morton  v.  Bailey 
etaL,  213 

4.  An  administrator  is  not  bound  upon  the  exhibition  by  a  creditor  of  his 

claim  against  the  estate  of  the  intestate,  to  set  off  any  debt  or  demand 
such  estate  may  have  against  such  creditor;  and  his  failing  to  do  so  will 
not  bar  such  debt  or  demand.  Ibid.,  213 

5.  A  note  payable  in  mason  work  is  not  assignable  so  as  to  enable  the  assignee 

to  plead  it  as  a  set-off  to  an  action  against  him,  or  to  enable  him  to  in- 
stitute a  suit  thereon  in  his  own  name.  Ransom  v.  Jones,  291 

6.  Under  §  17  of  the  practice  act,  unliquidated  damages  arising  ex  contractu 

may  be  set  off  in  an  action  of  assumpsit.  The  rule  was  different  under 
the  act  of  1819.  Edwards  et  al.  v.  Todd,  462 

7.  Where  the  plaintiff  brought  an  action  of  assumpsit   to  recover  the 

amount  of  freight  agreed  to  be  paid  by  the  defendants  for  the  trans- 
portation of  their  goods  from  Buffalo  to  Chicago,  and  the  defendants 
pleaded  the  general  issue,  and  gave  notice  of  their  intention  to  give  in 
evidence  under  that  plea,  that  a  portion  of  the  goods  agreed  to  be  trans- 
ported exceeding  in  value  the  whole  amount  of  the  freight  claimed  was, 
through  the  negligence,  carelessness,  and  improper  conduct  of  the 
plaintiff,  lost  and  destroyed  on  the  voyage ;  and  on  the  trial  offered  to 
introduce  such  evidence,  first,  byway  of  set-off,  and  secondly,  by  way 
of  reducing  the  damages  claimed:  Held,  that  the  evidence  was  admis- 
sible as  well  as  a  set-off,  as  in  reduction  of  damages.  Ibid.,  462 

8.  The  words  "claim  or  demand"  in  the  section  of  the  statute  allowing 

set-offs,  is  to  be  confined  to  such  as  arise  from  "contracts  or  agree- 
ments, express  or  implied."  Ibid.,  462 

SERVICE  OF  PROCESS. 

1.  A  return  to  a  summons  signed  by  a  person  as  "  deputy  sheriff,"  without 

using  the  name  of  the  sheriff,  is  erroneous  and  void.  Ditch  v.  Ed- 
wards, 127 

2.  The  return  of  a  constable  or  other  officer  should  state  the  time  when 

service  of  process  was  made.     Wilson  v.  Greathouse,  174 

3.'  The  following  return  upon  a  summons,  "Executed  on  the  within  defend- 
ant by  his  reading  the  within.  Joseph  Flinn,  Const.  M.  C."  is  insuffi- 
cient and  void.  Ibid.,  174 

4.  Parol  proof  can  not  be  received  to  show  when  process  was  served,  where 

the  officer  who  made  the  process  is  dead.    /  bid.,  174 

5.  The  return  of  a  sheriff  should  state  the  time  when  the  process  was  exe- 

cuted.    Clcmson  et  al.  v.  Hamm,  176 

6.  The  return  of  a  sheriff  upon  a  summons,  in  these  words,  "Executed  on 

Hunter— ^Clemson  not  found.  N.  Buckmaster,  Sheriff,  M.  C."  is  insuffi- 
cient. Ibid.,  176 

7.  The  return  of  a  sheriff  should  state  the  manner  in  which  the  process  was 

executed.  "  Executed  Oct.  18th,  1832,  as  commanded  within,"  is  not  a 
sufficient  return  to  a  summons.  Ogle  v.  Coffey,  239 

8.  In  an  action  against  an  oflicer  for  an  escape  on  process  sued  out  and 

placed  in  the  officer's  hands  to  execute,  or  in  an  action  for  a  false  re- 
turn, or  for  a  refusal  to  execute  such  process,  it  is  no  justification  for 
suffering  an  escape,  or  for  making  a  false  return,  or  for  a  refusal  to 
execute  such  process,  that  the  forms  of  law  in  suing  out  such  process 
have  not  all  been  observed.  If  the  process  be  regular  on  its  face,  and  it 
be  not  absolutely  void,  having  been  issued  without  the  authority  of  law, 
718 


INDEX.  679 

the  officer  can  never  be  made  a  trespasser,  although  it  may  have  been 
erroneously  issued;  and  he  is  bound  to  execute  the  process,  although  it 
may  have  been  erroneously  sued  out.  If  the  magistrate  had  jurisdic- 
tion of  the  subject-matter,  the  officer  was  not  bound  to  inquire  further 
into  the  accuracy  of  his  proceedings,  but  should  have  proceeded  to  obey 
the  mandate  of  the  warrant.  Brother  et  al.  v.  Cannon,  200 

9.  A  judgment  by  default  is  irregular,  unless  it  appear  by  a  return  on  the 

process,  that  it  had  been  served,  and  on  what  day  service  was  made. 
Garrettv.  Phelps,  331 

10.  The  justice  of  the  peace  who  issues,  and  the  constable  whb  executes, 
process  in  a  case  where  the  justice  has  not  jurisdiction,  are  both  liable 
as  trespassers.    Hull  v.  Blaisdell  et  al.,  332 

11.  The  statute  specifies  but  two  cases  in  which  a  justice  of  the  peace  is  au- 
thorized to  appoint  a  constable  pro  tern.    The  one  is  to  execute  criminal 
process,  where  the  accused  is  likely  to  escape;  and  the  other  is  to  exe- 
cute civil  process,  where  goods  and  chattels  are  about  to  be  removed 
before  an  application  can  be  made  to  a  qualified  constable.     In  the  lat- 
ter case,  as  a  pre-requisite  to  the  power  of  appointment,  it  must  be 
shown  that  goods  and  chattels  are  about  to  be  removed.     Gordon  v. 
Knapp  et  al.,  488 

12.  The  appointment  of  a  constable  pro  tern,  by  a  justice  of  the  peace,  to 
execute  process,  under  §  51  of  the  " Act  concerning  Justices  of  the  Peace 
and  Constables"  must  be  made  by  indorsement  upon  the  back  of  the 
process.    An  appointment  upon  a  separate  piece  of  paper,  is  not  a  com- 
pliance with  the  act.    Ibid.,  488 

13.  A  justice  of  the  peace  can  not  appoint  a  constable  pro  tern,  to  serve  a 
summons  or  other  personal  notice,  in  a  civil  suit.     The  statute  refers  to 
an  execution  or  attachment.    Ibid.,  488 

Semble,  That  where  a  justice  of  the  peace,  or  other  inferior  officer,  acts  in 
a  case  where  he  is  not  authorized  to  act,  the  proceedings  are  not  only 
irregular,  but  void.  Ibid.,  488 

See  EVIDENCE,  8,  9. 

SETTLERS. 
See  TRESPASS. 

SHERIFF. 

1.  In  proceedings  against  a  sheriff  under  §  30  of   the  practice  act,  by 

motion  for  failing  to  pay  over  money  collected  by  him  on  execution, 
the  judgment  should  be  for  the  amount  collected,  and  interest  thereon, 
at  the  rate  of  twenty  per  centum  per  annum.  Beaird  v.  Foreman, 

40 

2.  The  remedy  given  by  §  14  of  the  "  Act  concerning  Sheriffs  and  Coro- 

ners," is  a  distinct  remedy  from  that  given  by  §  30  of  the  practice  act; 
and  it  is  in  the  option  of  the  plaintiff  in  execution,  to  resort  to  which- 
ever he  pleases.  Ibid.,  40 

SHERIFF'S  SALE. 
See  EJECTMENT;  EXECUTION. 

SLANDER. 

1.  In  an  action  for  slander,  it  is  sufficient  to  prove  the  substance  of  the 
words  charged.  But  proof  of  equivalent  words  is  not  sufficient.  Sl<>- 
cumb  v.  Kuykendall,  187 

SPECIFIC  PERFORMANCE. 
See  CHANCEUY. 

719 


680  INDEX. 

STATUTES. 

See  CONSTRUCTION  OF  STATUTES;  EJECTMENT;  PENAL  STATUTES-  PUBLIC 

ACTS. 

STATUTE  OF  FRAUDS. 
See  FRAUDS;  PROMISE,  1,  2,  3. 

STATUTE  OF  LIMITATIONS. 

1.  A  debt  due  to  the  State  Bank  of  Illinois  is  a  debt  due  to  the  State,  and  is 

not  barred  by  the  statute  of  limitations.  The  State  Bank  of  Illinois 
v.  Broicn  et  aL,  106 

2.  Non-residents  are  exempted  from  the  operation  of  the  statute  of  limita- 

tions.    White  v.  Might,  204 

3.  The  limitation  of  sixteen  years  in  the  statute  of  limitations  only  applies 

to  actions  of  debt  and  covenant,  and  to  actions  upon  awards.    Ibid., 

204 

4.  Where  B.  agreed,  by  parol,  to  purchase  of  L.  a  tract  of  land,  and  to  pay 

^400  for  the  same,  in  four  equal  annual  installments,  but  no  memoran- 
dum in  writing  was  made  of  the  bargain,  and  some  time  afterward  a 
note  was  executed  for  the  amount  then  due,  of  the  principal  of  said 
purchase  money,  and  a  deed  made  for  the  land,  but  the  parties  not 
agreeing  as  to  the  rate  of  interest  for  the  time  payment  had  been  de- 
layed, that  was  left  for  future  adjustment :  Held,  that  the  contract  to 
pay  interest  was  not  within  the  statute  of  frauds.  Said  agreement  to 
purchase  the  land  was  niade  in  1824,  and  the  note  was  executed  in 
1832.  The  suit  was  instituted  in  1835:  Held,  also,  that  the  contract  for 
interest  was  not  barred  by  the  statute  of  limitations.  Prevo  v.  La- 
throp,  305 

SUIT. 

1.  The  issuing  of  the  summons  is  the  commencement  of  a  suit.     Feazle  v. 

Simpson  et  al.,  30 

2.  The  remedy  given  by  statute,  to  collect  fees  by  making  out  a  fee  bill  and 

delivering  it  to  an  officer,  is  a  cumulative  remedy,  but  it  does  not  take 
away  the  common  law  remedy  by  suit.  Morton  v.  Bailey  etal.,  213 

See  ACTION. 

SURVEYOR. 

1.  A  county  surveyor  is  entitled  to  receive  twenty-five  cents  and  no  more, 

for  each  lot  contained  in  any  town  plat  which  he  lays  out,  surveys,  and 
plats.  Pearsons  et  al.  v.  Bailey,  507 

2.  If  to  lay  out,  survey,  and  plat  a  town,  it  is  necessary  to  employ  chain- 

men,  it  is  then  as  much  the  duty  of  the  surveyor  to  employ  and  pay 
them  as  it  is  to  furnish  a  chain  or  compass,  or  to  draw  the  map.  Ibid., 

507 

3.  The  provision  of  §5  of  the  act  of  Jan.  14,  1829,  that  "All  chainmen  nec- 

essary shall  be  employed  by  the  person  wanting  surveying  done,"  does 
not  apply  to  surveyors  of  town  plats.  Ibid.,  507 

SURETY. 

1.  The  contract  of  a  surety  is  to  be  construed  strictly,  both  in  law  and 

equity,  and  his  liability  is  not  to  be  extended  by  implication  beyond  the 
terms  of  his  contract.  Reynolds  v.  Hall  et  al.,  35 

2.  The  sureties  of  the  late  State  Treasurer  are  not  liable  for  his  acts  as 

Cashier  of  the  old  State  Bank.    Ibid.,  35 

3.  It  is  a  well  settled  rule  that  a  surety  can  not  be  held  beyond  the  express 

terms  of  his  undertaking,  as  understood  by  the  parties,  when  the  con- 
tract was  entered  into.  Ibid.,  35 

720 


INDEX.  681 

4.  Where  at  the  bottom  of  a  bond  made  by  a  principal  and  his  surety,  a 

memorandum  was  annexed,  that  "  This  bond  is  executed  by  Mr.  H.  as 
security  for  Mr.  W.,  the  principal:"  Held,  that  the  fact  contained  in 
said  memorandum  could  not  be  pleaded  to  an  action  on  the  bond  against 
the  surety:  Held,  also,  that  it  was  unnecessary  to  notice  the  memoran- 
dum in  the  declaration.  Wilson  et  al.  v.  Campbell  et  aL,  493 

5.  Where  two  persons  execute  a  bond,  one  as  principal  and  the  other  as 

surety,  one  is  equally  as  much  bound  to  the  obligee  as  the  other.    Ibid. , 

493 

6.  Semble,    That  the  signing  as  surety  is  only  evidence    between    the 

obligors  of  the  character  of  the  obligation  of  each.    Ibid.,  493 

SURPLUSAGE. 
1.  Surplusage  can  not  vitiate  a  notice.    Pearce  et  al.  v.  Swan,  266 

TAXES. 
See  CONSTRUCTION  OP  STATUTES. 

TENANT  IN  COMMON. 

1.  One  joint  tenant,  or  tenant  in  common,   may  maintain  an  action  for 
forcible  entry  and  detainer  against  his  co-tenant.    Ma  son  v.  Finch, 

495 

TITLE.    * 

1.  Where  two  patents  have  issued  for  the  same  lands  to  different  persons, 

at  different  times,  the  elder  patent  is  the  highest  evidence  of  title,  and 
as  long  as  it  remains  in  force  it  is  conclusive  against  a  junior  patent. 
Bruner  v.  Manlove  et  al.,  156 

2.  In  a  republic,  the  title  to  land  derived  from  the  government,  springs 

from  the  law.    McConnell  v.  Wilcox,  344 

See  ESTATES. 

TOWN. 
See  DEBT. 

TOWN  PLATS. 
See  SURVEYOR. 

TRANSCRIPT. 
See  RECORD. 

TREASURER. 

1.  The  sureties  of  the  late  State  Treasurer,  are  not  liable  for  his  acts  as 

Cashier  of  the  old  State  Bank.    Reynolds  v.  Hall  et  al.,  35 

2.  A  County  Treasurer  has  no  authority  whatever  to  take  a  note  payable  to 

himself  as  Treasurer;  nor  has  he  any  authority  to  assign  or  transfer 
such  a  note.  Berry  v.  Hamby,  468 

3.  A  suit  can  not  be  maintained  in  the  name  of  a  County  Treasurer.    Sed 

quere. 

4.  Quere,  Whether  an  action  in  the  name  of  the  county,  can  be  maintained 

upon  a  note  payable  to  the  County  Treasurer.    Ibid.,  468 

TRESPASS. 

1.  Statutes  defining  the  boundaries  of  counties,  are  public  acts,  and  courts 
are  bound  judicially  to  take  notice  of  them.      In  an  action  of  trespass 
quare  clausumfregit,  proof  that  the  trespass  was  committed  upon  the 
VOL.  1-46  781 


682  INDEX. 

premises  described  in  the  declaration,  by  the  number  of  the  section, 
township  and  range  (the  said  premises  being  in  the  proper  county),  is 
sufficient  without  evidence  that  the  premises  are  situated  in  the  county 
where  the  action  is  brought.  Ross  et  al.  v.  Reddick,  73 

2.  In  actions  of  trespass  quart  clausumfregit,  the  law  is  well  settled,  that 

possession  of  the  close  is  sufficient  to  sustain  the  action  against  any  per- 
son who  shall  enter  upon  that  possession  except  the  owner.  Webb  v. 
Sturtevant,  181 

3.  The  possession,  where  that  alone  is  relied  on,  must  be  an  actual  and  not 

a  constructive  possession.    Ibid.,  181 

4.  A  settler  upon  the  public  lands  of  the  United  States,  can  not  maintain  an 

action  of  trespass  against  a  person  who  may  enter  and  cut  down  the 
timber,  upon  a  portion  of  the  legid  subdivision  of  land  upon  which  he  is 
settled,  but  which  is  not  actually  inclosed  or  occupied  iby  such  settler. 
Lovett  et  al.  v.  Noble,  185 

5.  The  doctrine  in  relation  to  trespass  is  well  settled,  that  there  are  no  ac- 

cessaries; all  are  principals  who  are  in  any  wise  concerned  in  the  tres- 
pass. The,  person  who  commands  or  approves,  is  equally  guilty  with 
the  one  who  performs  the  act.  Whitney  et  al.  \.  Turner,  253 

6.  The  justice  of  the  peace  who  issues,  and  the  constable  who  executes,  proc- 

ess in  a  case  where  the  justice  has  not  jurisdiction,  are  both  liable  as 
trespassers.  Hull  v.  Blaisdell  et  al.,  332 

See  ASSAULT  AND  BATTERY;  CONSTABLE;  JUSTICES  OP  THE  PEACE;  POS- 
SESSION. 

USE  AND  OCCUPATION-. 

1.  In  order  to  enable  an  administrator  to  maintain  an  action  for  the  use  and 

occupation  of  a  farm,  the  plaintiff,  or  his  intestate,  must  have  been  the 
owner  of  the  premises,  or  there  must  have  been  an  express  contract  on 
the  part  of  the  defendant  to  pay  rent.  Bailey  v.  Campbell,  110 

2.  In  the  case  of  a  parolpurchase  of  land,  if  the  vendee  enter  into  possession, 

and  afterward  refuse  to  affirm  the  contract,  he  would  be  liable  to  the 
vendor  for  the  use  and  occupation  of  the  land,  and  could  not  dispute 
his  title  by  setting  up  an  outstanding  title  in  a  third  person.  Whitney 
v.  Cochran  et  aL,  209 

TTSURY. 

1.  A  defendant  can  not  avail  himself  of  the  statute  against  usury,  unless 
the  same  be  pleaded,  and  an  application  be  made  to  the  Court 
where  the  cause  is  pending,  for  the  benefit  of  the  act.  Murry  v. 
Crocker,  212 

See  INTEREST. 

VARIANCE. 

1.  In  an  action  for  slander,  it  is  sufficient  to  prove  the  substance  of  the 

words  charged.  But  proof  of  equivalent  words,  is  not  sufficient.  Slo- 
cumb  v.  Kuykendall,  187 

2.  A  variance  between  the  agreement  declared  on,  and  the  declaration, 

should  be  taken  advantage  of  on  the  trial  by  a  demurrer  to  evidence,  or 
a  motion  for  a  nonsuit.  Pearsons  v.  Lee,  193 

3.  A  declaration  in  detinue  for  "a  red  cow  with  a  white  face,"  is  not  sup- 

ported by  proof  that  "the  cow  was  a  yellow  or  sorrel  cow."    Felt  v. 
:     .  Williams,  206 

4.  The  rule  applicable  to  variances  is,  that  whenever  an  instrument  of  writ- 

ing or  a  record  is  not  the  foundation  of  the  action,  a  variance  is  not 
material  unless  the  discrepancy  is  so  great  as  to  amount  to  a  strong 
probability  that  it  can  not  be  be  the  instrument  or  record  described. 
Leidig  v.  Rawson,  272;  Hull  v.  Blaisdell  et  al.,  332 

6.  Where  the  writ  of  attachment  described  in  a  declaration  in  an  action  of 

722 


INDEX.  683 

trespass  against  a  justice  of  the  peace  for  issuing  an  attachment  where 
he  had  no  jurisdiction,  was  for  $38. 12J£,  and  the  writ  of  attachment 
produced  in  evidence  was  $37.50:  H eld,  that  there  was  no  material 
variance.  Hullv.  Blaisdell  et  al.,  332 

6.  Where  the  declaration  averred  that  the  defendants  made  their  promissory 

note  to  the  plaintiff,  Alexander  Tappan,  and  the  note  produced  in  evi- 
dence, was  made  payable  to  A.  H.  Tappan,  and  the  plaintiff  proved  by 
parol  that  Alexander  and  A.  H.  was  one  and  the  same  person,  and  the 
holder  of  the  note:  Held,  that  the  proof  sustained  the  declaration. 
Peyton  et  al.  v.  Tappan,  388 

7.  In  an  action  upon  a  promissory  note  against  the  maker,  the  declaration 

described  the  note  as  made  by  William  Linn.  The  note  produced  in 
evidence  was  signed  "  Wm.  Linn:1'  Held,  there  was  no  variance,  and 
that  the  proof  was  sufficient.  Linn  v.  Buckingham  et  al.,  451 

8.  Where  the  plaintiff  brought  an  action  before  a  justice  of  the  peace,  upon 

a  bond  made  by  the  defendant  while  an  infant,  and  upon  the  trial 
the  defendant  pleaded  and  proved  his  infancy  in  bar  ;  and  thereupon 
the  plaintiff  made  oath  that  he  knew  of  no  witness  by  whom  he  could 
prove  the  defendant's  agreement  since  he  became  of  age,  to  pay  him 
$18  in  full  of  the  bond,  except  by  his  own  oath,  or  that  of  the  defend- 
ant, and  prayed  that  the  defendant  might  be  sworn,  which  the  Court 
refused  to  allow :  Held,  that  the  Court  decided  correctly,  because  the 
proof,  if  admitted,  would  have  proved  a  different  cause  of  action  from 
that  upon  which  suit  was  brought.  Bliss  et  al.  v.  Ferryman,  484 

9.  At  common  law,  in  an  action  by  S.  W.  and  H.  L.,  on  a  promissory  note 

made  payable  to  W.  and  L.,  without  mentioning  their  Christian  names, 
the  presumption  would  be  that  the  plaintiffs,  being  holders  of  the  note, 
were  the  persons  to  whom  the  promise  was  made,  until  the  contrary 
was  shown.  Hollenbackv.  Williams  et  al.,  544 

10.  On  an  appeal  from  the  Circuit  to  the  Supreme  Court,  a  variance  between 
the  amount  of  the  judgment  appealed  from,  and  the  amount  recited  in 
the  bond,  is  fatal,  though  the  variance  occurred  through  the  mistake  or 
inadvertence  of  the  clerk  of  the  Circuit  Court.     Brooks  et  al.  v.  The, 
Town  of  Jacksonville,  568 

11.  Where  an  appeal  is  dismissed,  the  Court  will  not  permit  the  transcript 
of  the  record  to  be  withdrawn  for  the  purpose  of  bringing  a  writ  of  er- 
ror.   Ibid.,  568 

VENDOR  AND  VENDEE. 

1.  In  the  case  of  a  parol  purchase  of  land,  if  the  vendee  enter  into  posses- 

sion, and  afterward  refuse  to  affirm  the  contract,  he  would  be  liable  to 
the  vendor  for  the  use  and  occupation  of  the  land,  and  could  not  dispute 
his  title  by  setting  up  an  outstanding  title  in  a  third  person.  Whitney 
v.Cochranetal.,  209 

2.  A  parol  contract  for  the  purchase  of  land  is  not  absolutely  void,  but  only 

voidable  under  the  statute  of  frauds.     Ibid.,  209 

3.  Whatever  may  be  the  practice  in  Enerland  the  purchaser  here  is  not 

bound  to  prepare  and  tender  a  deed  to  the  vendor,  unless  such  obligation 
can  be  fairlv  inferred  from  the  terms  of  the  contract.  Buckmaster  v. 
Grundy,  310 

See  CHANCERY;  CONTRACT,  16,  17;  IMPROVEMENTS;  PROMISSORY  NOTES; 
PUBLIC  LANDS. 

VENIRE. 

1.  The  Circuit  Court  may  set  aside  a  defective  verdict,  and  award  a  venire 

de  noro,  in  a  criminal  case,  where  the  facts  found  are  so  defective  that 
no  judgment  can  be  rendered  upon  such  verdict.  Lawrence  et  al.  v. 
The  People,  414 

2.  Where  the  precept  for  summoning  the  jury  at  a  special  term  of  a  Circuit 

Court,  called  for  the  trial  of  a  prisoner  charged  with  a  capital  crime, 

723 


684:  INDEX. 

had  been  lost  by  the  sheriff,  and  the  Court  directed  a  new  one  to  be 
filed  nunc  pro  tune:  Held,  that  there  was  no  error.  Guykowski  v.  The 
People,  476 

VENUE. 

1.  A  prisoner  is  entitled  to  a  change  of  venue  whenever,  by  petition  verified 

by  affidavit,  he  brings  himself  within  the  requisitions  of  the  statute.' 
The  obligation  of  the  judge  to  allow  it  is  imperative,  and  admits  of  the 
exercise  of  no  discretion.  Clark  v.  The  People,  117 

2.  Reasonable  notice  must  be  given  to  the  adverse  party  of  a  motion  for  a 

change  of  venue.    Berry  v.  Wilkinson  et  al.,  164 

3.  The  length  of  time  necessary  to  constitute  reasonable  notice,  will  in  some 

degree  depend  upon  the  peculiar  circumstances  of  each  particular  case, 
and  must  necessarily  be  let t  to  the  legal  discretion  of  the  judge  or  court 
to  which  the  application  is  made.  Ibid.,  164 

4.  The  venue,  in  an  action  for  assault  and  battery,  is  transitory.     Hurley  v. 

Marsh  etaL,  329 

5.  Where  a  declaration   stated  that   the  assault  and  battery  were  com- 

mitted "  at  Montebello,  in  the  county  of  Hancock,  and  within  the  juris- 
diction of  this  Court,"  Held,  that  it  was  unnecessary  to  prove  that  the 
assault  and  battery  were  committed  within  the  town  of  Montebello. 
Ibid.,  329 

6.  Original  process  can  be  issued  to  a  different  county  from  that  in  which 

the  action  is  commenced,  in  the  three  following  cases  only: 

1.  When  the  plaintiff  resides  in  the  county  in  which  the  action  is 
commenced,  and  the  cause  of  action  accrued  in  sueh  county. 

2.  Where  the  contract  is  made  specifically  payable  in  the  county  in 
which  the  action  is  brought.     In  this  case,  no  regard  is  paid  to  the 
residence  of  the  plaintiff. 

3.  Where  there  are  several  defendants  residing  in  different  counties, 
and  the  action  is  commenced  in  the  county  in  which  some  one  of  the 
defendants  resides.    Key  v.  Collins,  403 

7.  Where  A,  B,  C,  and  D,  were  jointly  indicted  in  the  Edgar  Circuit  Court, 

and  A  alone  moved  for  and  obtained  a  change  of  venue  to  the  Clark 
Circuit  Court,  without  the  consent  of  the  others,  where  he  was  tried, 
and  after  his  trial  the  indictment,  without  any  order  of  Court,  was  re- 
turned to  the  Edgar  Circuit  Court,  and  B,  C,  and  D  called  upon  to 
plead  to  the  same.  Held,  that  the  proceedings  were  regular,  and  that 
the  indictment  as  to  B,  C,  and  D,  must  be  considered  as  remaining  un- 
der the  control  of  the  Edgar  Circuit  Court,  and  that  no  trial  could  be 
had  elsewhere.  The  Circuit  Court  of  Clark  county  should  have  ordered 
the  original  indictment  to  be  returned  to  Edgar  county,  and  retained  a 
copy  thereof  upon  its  own  records.  Hunter  et  al.  v.  The  People,  453 

VERDICT. 

1.  Where  the  issue  is  wholly  immaterial,  the  verdict  of  the  jury  will  be  set 

aside.  The  rule  is  that  where  matter,  be  it  never  so  well  pleaded, 
could  signify  nothing,  judgment  may,  in  such  cases,  be  given  as  by  con- 
fession. Woods  v.  Hynes,  103 

2.  Courts  will  reluctantly  interfere  to  set  aside  a  verdict  and  grant  a  new 

trial,  where  the  proceedings  have  been  regular.  Wickersham  v.  The 
People,  128 

8.  Semble,  That  the  affidavit  of  a  juror  in  support  of  the  verdict,  on  a  point 

entirely  disconnected  with  his  acts  or  the  motives  tor  his  conduct,  may 
be  admitted  on  a  motion  for  a  new  trial.  Guykowski  v.  The  People, 

476 

4.  The  verdict  of  a  jury  in  the  Circuit  Court,  on  the  trial  of  the  right  of 

property,  found  the  title  in  the  defendant  in  the  attachment:  Held, 
that  the  finding  was  sufficiently  formal  and  explicit,  as  it  negatived  the 
title  set  up  by  the  claimant.  Sheldon  v.  Reihle  et  al.,  519 

5.  Semble,  That  where  the  verdict  of  a  jury  is  for  a  greater  sum  than  the  ad 

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damnum  laid  in  the  declaration,  the  plaintiff  may  remit  the  excess,  and 
take  judgment  for  the  sum  laid.  Gillet  et  al.  v.  Stone  et  al.,  539 

See  CRIMINAL  LAW,  9,  10, 11;  NEW  TRIAL,  6,  8. 

VESSELS. 
See  ATTACHMENT,  12. 

WAIVER. 
See  JURISDICTION;  PLEADING;  PRACTICE;  PROCESS. 

WIDOW. 
See  DOWER. 

WILLS  AND  TESTAMENTS. 
See  ESTATES. 

WITNESS. 

1.  It  is  a  general  rule  that  all  persons  are  competent  -witnesses  who  have 
sufficient  understanding  and  are  not  disqualified  by  interest,  crime,  or 
want  of  a  proper  sense  of  moral  obligation  to  speak  the  truth.  Clifton 
v.  Boc/ardus,  32 

1.  In  a  trial  of  the  right  of  property,  the  defendant  in  execution  is  a  compe- 
tent witness  for  the  claimant.  The  interest  which  disqualifies  must  be 
in  favor  of  the  party  calling  the  witness.  Ibid.,  32 

3.  Where  a  witness  is  sworn  in  chief,  he  is  bound  to  state  all  the  facts  in  his 

knowledge,  that  are  applicable  to  the  case,  and  that  can  be  proved  by 
parol;  and  it  can  make  no  difference  whether  such  testimony  is  given 
in  answer  to  the  interrogatories  of  the  party  against  whom  it  operates, 
or  not.  Roberts  v.  Gar  en,  396 

4.  The  admission  of  an  assignor  of  a  promissory  note,  as  a  witness,  to  prove 

the  time  of  assignment,  is  contrary  to  the  rules  of  evidence.  Stacy  v. 
Baker,  417 

See  EVIDENCE. 

WOEK  AND  LABOR. 

See  CONTRACT. 
WRIT  OF  ERROR. 

See  ERROR. 
WRIT  OF  INQUIRY. 

1.  A  writ  of  inquiry  is  never  necessary  where  the  damages  can  be  ascer- 

Jained  by  computation.  Clemson  et  al.  v.  The  State  Bank  of  Illi- 
nois, 45 

2.  A  writ  of  inquiry  may  be  executed  in  vacation  as  well  as  in  term  time.    It 

may  be  executed  at  any  place  within  the  sheriff's  bailiwick.  The  stat- 
ute has  not  changed  the  common  law  in  this  respect.  Vanlandingham 
v.  Fellows  et  al.,  233 

3.  If  any  irregularity  take  place  in  the  execution  of  a  writ  of  inquiry. 

the  proper  way  is  to  apply  upon  affidavit,  to  the  Circuit  Court,  to  set  the 
inquest  aside.  Ibid.,  233 

4.  Where  judgment  is  rendered  for  the  plaintiff  on  demurrer  to  the  defend- 

ant's plea,  the  plaintiff  may  have  an  inquest  to  ascertain  the  damages. 
or  he  may  waive  this  and  take  judgment  for  nominal  damages.  Boon 
v.  Juliet,  258 

5.  Instructions  .to  a  jury  upon  an  inquest  of  damages  are  mere  interlocutory 

matters,  and  the  Supreme  Court  has  no  right  to  re-examine  them.   Gil- 
let  et  al.  v.  Stone  et  al.  539 
See  DEFAULT,  3. 

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